| People v Lumpkin |
| 2017 NY Slip Op 07458 [154 AD3d 966] |
| October 25, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v James Lumpkin, Appellant. |
Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J.Twersky, and Paul Hastings LLP [Gary F. Giampetruzzi and J. Jeanette Kang], of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Harrington,J.), rendered February 5, 2015, convicting him of assault in the second degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's conviction of assault in the second degree required proof of physical injury(Penal Law § 120.05 [3]). Physical injury is defined as "impairment of physicalcondition or substantial pain" (Penal Law § 10.00 [9]). Although "substantial pain"must be "more than slight or trivial pain," it need not be "severe or intense to be substantial" (People v Chiddick, 8 NY3d 445,447 [2007]).
Contrary to the defendant's contention, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish beyond a reasonable doubt that the complainant suffered a physical injurywithin the meaning of Penal Law § 10.00 (9) (see People v Chiddick, 8NY3d at 447). Moreover, in fulfilling our responsibility to conduct an independent review of theweight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accordgreat deference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltof assault in the second degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]). The testimony established that the defendant caused the complainant to fall to his kneeson a concrete floor. As a result, the complainant experienced such "excruciating" pain that hewas transported to the hospital by ambulance. At the hospital, the complainant reported that hispain level was a 9 on a scale of 1 to 10, and he was given nonprescription pain medication and abandage. He had bruising and swelling on his knee. The complainant missed almost four weeksof work because he "could barely walk." During that time he attended physical therapy sessionsthree times per week and was unable to play basketball or "walk straight." Thus, the evidenceestablished that the complainant suffered a physical injury within the meaning of Penal Law§ 10.00 (9) (see People vRahman, 84 AD3d 1119 [2011]; People v [*2]Williams, 69 AD3d662 [2010]).
The defendant received the effective assistance of counsel (see Strickland vWashington, 466 US 668 [1984]; People v Baldi, 54 NY2d 137, 146-147[1981]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review and, in anyevent, without merit. Mastro, J.P., Sgroi, Cohen and Maltese, JJ., concur.