Opinion
Argued November 10, 1987
Decided November 24, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Charles F. Cacciabaudo, J.
Monroe A. Semble and John F. Middlemiss for appellant in the first above-entitled action. Elizabeth Holtzman, District Attorney (Linda Starr and Barbara D. Underwood of counsel), for appellant in the second above-entitled action.
Patrick Henry, District Attorney (Michael J. Miller of counsel), for respondent in the first above-entitled action.
John Gemmill and Philip L. Weinstein for respondent in the second above-entitled action.
MEMORANDUM.
The order of the Appellate Division in People v Greene should be affirmed. The order of the Appellate Division in People v Bogan should be reversed and the case remitted to the Appellate Division for a determination of the facts (CPL 470.25 [d]; 470.40 [2] [b]).
In People v Greene, defendant appeals from an order affirming his conviction of assault in the second degree (Penal Law § 120.05). In People v Bogan, the People appeal from an order which modified defendant's judgment of conviction, on the law, by reducing the conviction for robbery in the second degree (Penal Law § 160.10 [a]) to robbery in the third degree (Penal Law § 160.05). The common issue in these appeals is whether the defendants' motions for dismissal should have been granted because the People failed to prove that the victim suffered "physical injury" (Penal Law § 10.00). Penal Law § 10.00 (9) defines physical injury as "impairment of physical condition or substantial pain".
In Greene, there was proof that defendant tripped the victim, sat on him, kicked him in the ribs, and cut him over the eye and on the hand with a knife. The victim testified that he was "in terrible pains" and had "a lot" of pain from his injuries. Although the victim did not go to the hospital, he bled "all over" and he had to wear bandages on the lacerations for three weeks. At the time of trial he had "permanent spots" left from the cuts on his hand.
In Bogan, there was proof that defendant grabbed the victim around the neck, pushed him to the floor, and choked him. As a result, the victim stopped breathing momentarily and lost consciousness temporarily. Shortly after the incident, he was taken to the hospital, diagnosed as having sustained contusions on his neck, and given medication. The victim stated that he suffered from pain and had difficulty swallowing for two days after the incident.
We conclude in both cases that there is sufficient evidence for the jury to have found that injuries received by the victim constituted "physical injury" within the meaning of Penal Law § 10.00 (9) (see, People v Rojas, 61 N.Y.2d 726, 727; People v Jimenez, 55 N.Y.2d 895, 896; Matter of Philip A., 49 N.Y.2d 198, 200).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
In People v Greene: Order affirmed in a memorandum.
In People v Bogan: Order reversed and case remitted to the Appellate Division, Second Department, for determination of the facts in a memorandum.