Opinion
April 14, 1993
Appeal from the Oneida County Court, Auser, J.
Present — Green, J.P., Fallon, Boomer, Davis and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oneida County Court for resentencing in accordance with the following Memorandum: As a result of his altercation with defendant, complainant suffered minor cuts and bruises and transient pain, which did not require medical treatment. Viewing the evidence in the light most favorable to the People, we conclude that there was not sufficient evidence of physical injury as defined in the Penal Law (Penal Law § 10.00) to support defendant's conviction of robbery in the second degree and assault in the second degree (see, People v Rolando, 168 A.D.2d 578, lv denied 77 N.Y.2d 910; People v Prosser, 130 A.D.2d 972; People v Dorsey, 112 A.D.2d 536, 537, lv denied 66 N.Y.2d 763; People v Contreras, 108 A.D.2d 627, 628). Complainant's testimony that the altercation caused "emotional upset" resulting in a "flare up" of arthritis in his knee, without competent supporting medical proof, was not sufficient to establish that defendant's conduct was a proximate cause of the recurrence of complainant's arthritis (see generally, People v Stewart, 40 N.Y.2d 692, 697; People v McCart, 157 A.D.2d 194, 197, lv denied 76 N.Y.2d 861). The evidence established, however, that defendant forcibly stole property from complainant. Defendant's conviction of robbery in the second degree is therefore modified by reducing the conviction to robbery in the third degree (see, Penal Law § 160.05; see also, CPL 470.15 [a]) and by vacating the sentence imposed thereon, and the matter is remitted to County Court for resentencing. Because the assault in the second degree count was an inclusory concurrent count of the robbery count (see, CPL 300.30; 300.40 [3] [b]; see also, People v Rogers, 139 A.D.2d 782, 783; People v Boyd, 102 A.D.2d 774), defendant's conviction on the assault charge is reversed, his sentence thereon vacated, and the assault count dismissed.
We have examined defendant's other contentions and find them to be without merit.