Opinion
2013-05-1
The PEOPLE, etc., respondent, v. Robert BOLEY, appellant.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Bruce Alderman of counsel; Jason D. Krumenaker on the brief), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Leila Hull of counsel), for appellant, and appellant pro se. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin, and Bruce Alderman of counsel; Jason D. Krumenaker on the brief), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered January 21, 2011, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
After a jury trial, the defendant was convicted of assault in the third degree ( seePenal Law § 120.00). In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( seeCPL 470.15 [5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053;People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury” ( see Matter of Philip A., 49 N.Y.2d 198, 199–200, 424 N.Y.S.2d 418, 400 N.E.2d 358;People v. Taylor, 83 A.D.3d 1105, 1106, 921 N.Y.S.2d 553;People v. Zalevsky, 82 A.D.3d 1136, 1137, 918 N.Y.S.2d 790;People v. Baksh, 43 A.D.3d 1072, 1073–1074, 845 N.Y.S.2d 343;People v. Richmond, 36 A.D.3d 721, 722, 826 N.Y.S.2d 748;People v. Baez, 13 A.D.3d 463, 464, 785 N.Y.S.2d 749;People v. Briggs, 285 A.D.2d 651, 652, 728 N.Y.S.2d 763), and the judgment must be reversed and the indictment dismissed.
In light of our determination, we need not address the defendant's remaining contentions, including those raised in his pro se supplemental brief.