| People v Talbott |
| 2018 NY Slip Op 00641 [158 AD3d 1053] |
| February 2, 2018<> |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Edwin F.Talbott, II, Appellant. |
Leanne Lapp, Public Defender, Canandaigua (Mark C. Davison of counsel), fordefendant-appellant.
R. Michael Tantillo, District Attorney, Canandaigua (James B. Ritts of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedJune 17, 2014. The judgment convicted defendant, after a nonjury trial, of assault in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict ofassault in the second degree (Penal Law § 120.05 [3]). The case arose from anincident in which defendant struggled with parole officers who were arresting him for allegedparole violations. During the fracas, defendant fell on the left knee of one of the officers. Wereject defendant's contention that his conviction is not supported by legally sufficient evidencethat the officer sustained physical injury, which is defined as "impairment of physical conditionor substantial pain" (§ 10.00 [9]). " '[S]ubstantial pain' cannot be definedprecisely, but it can be said that it is more than slight or trivial pain" (People v Chiddick, 8 NY3d 445,447 [2007]). Here, the officer testified that he felt "a radiant pain throughout [his] entire knee."He described the pain level while standing or putting pressure on the knee as a 7 or 8 on a scaleof 1 to 10, causing him to limp "noticeably" for a "couple days," and he further testified that heused ibuprofen on the day of the injury to manage the pain. We conclude that his testimony issufficient to establish that he sustained physical injury (see People v Kraatz, 147 AD3d 1556, 1557 [4th Dept 2017]; People v Delaney, 138 AD3d1420, 1421 [4th Dept 2016], lv denied 28 NY3d 928 [2016]). Viewing the evidencein light of the elements of the crime in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's further contention that the verdict is against the weight of the evidence on the issue ofphysical injury (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Finally, thesentence is not unduly harsh or severe. Present—Whalen, P.J., Peradotto, Lindley,NeMoyer and Troutman, JJ.