Summary
In People v Jimenez (55 N.Y.2d 895), the Court of Appeals held, in a brief memorandum decision, that "[t]estimony that the victim suffered a one centimeter cut above her lip, without more, was not adequate to prove that the victim suffered either substantial pain... or impairment of a physical condition" (id. at 896 [emphasis added; citation and internal quotation marks omitted]).
Summary of this case from People v. WheelerOpinion
Argued January 8, 1982
Decided February 9, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ANTHONY T. JORDAN, JR., J.
Erica Horwitz and William E. Hellerstein for appellant. Elizabeth Holtzman, District Attorney ( Robert Cohen of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be modified by reversing defendant's conviction for assault in the second degree, dismissing that part of the indictment, and vacating the sentence imposed on that count. As so modified, the order of the Appellate Division should be affirmed.
The People failed to prove that the victim of the alleged assault suffered physical injury within the meaning of subdivision 6 of section 120.05 and subdivision 9 of section 10.00 of the Penal Law. Testimony that the victim suffered a one centimeter cut above her lip, without more, was not adequate to prove that the victim suffered either "substantial pain" ( Matter of Philip A., 49 N.Y.2d 198) or "impairment of a physical condition" ( People v McDowell, 28 N.Y.2d 373, 375).
Defendant's other contentions are either not preserved for review or do not warrant reversal by this court.
Chief Judge COOKE and Judges JASEN, GABRIELLI, WACHTLER, FUCHSBERG and MEYER concur; Judge JONES taking no part.
Order modified in accordance with the memorandum herein and, as so modified, affirmed.