People v. Boney

• Decision Date: 09 July 2014
• Citation: 119 A.D.3d 701,2014 N.Y. Slip Op. 05197,989 N.Y.S.2d 137
• Parties: The PEOPLE, etc., respondent, v. Murphy BONEY, appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 701

989 N.Y.S.2d 137

2014 N.Y. Slip Op. 05197

The PEOPLE, etc., respondent,

v.Murphy BONEY, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 9, 2014.

Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Emil Bricker of counsel), for respondent.

RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered February 24, 2010, convicting him of robbery in the second degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reducing the defendant's conviction of robbery in the second degree under count one of the indictment to robbery in the third degree and by vacating the sentences imposed upon the defendant's convictions under counts one and two of the indictment; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the conviction of robbery in the third degree and resentencing on the conviction of criminal possession of stolen property in the third degree.

Contrary to the People's contention, the defendant preserved for appellate review his claim that the Supreme Court erred in failing to conduct an individual inquiry of the jurors to determine whether a comment made by a complainant as he passed the jury when exiting the courtroom compromised the jurors' ability to render an impartial verdict ( see People v. Buford, 69 N.Y.2d 290, 299, 514 N.Y.S.2d 191, 506 N.E.2d 901;People v. Ventura, 113 A.D.3d 443, 446, 978 N.Y.S.2d 178). However, the court providently exercised its discretion in denying the defendant's request to conduct such an inquiry and instructing the jury to disregard any comment the jurors may have heard ( see People v. Mejias, 21 N.Y.3d 73, 79–80, 966 N.Y.S.2d 764, 989 N.E.2d 26;People v. Argendorf, 76 A.D.3d 1100, 1100, 907 N.Y.S.2d 519;People v. Benet, 45 A.D.3d 1449, 1451, 846 N.Y.S.2d 544;People v. Young Min Kwak, 29 A.D.3d 385, 385–386, 814 N.Y.S.2d 614).

However, we agree with the defendant that the People failed to present legally sufficient evidence of physical injury to sustain his conviction of robbery in the second degree ( seePenal Law § 160.10[2][a]; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932). “Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). The subject complainant testified that he sustained an injury to his left ring finger after he was attacked from behind and fell to the ground. The complainant went to the hospital after the incident, where his bruised finger was bandaged and placed in a splint, but X rays revealed no broken bones and there was no evidence presented that he was prescribed pain medication. A “bruise” was still present four years after the incident, but the complainant only testified generally that he felt pain on his hand and arms immediately after the incident, and he did not testify that the injury limited or diminished his ability to use his finger for any length of time. Under these circumstances, there was insufficient evidence from which a jury could infer that the complainant suffered substantial pain or impairment of physical condition ( see Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358;People v. Young, 99 A.D.3d 739, 740, 951 N.Y.S.2d 735;People v. Bedford, 95 A.D.3d 1226, 1226–1227, 944 N.Y.S.2d 638;People v. Taylor, 83 A.D.3d 1105, 1106, 921 N.Y.S.2d 553;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;cf. Matter of Jamal M., 187 A.D.2d 654, 655, 590 N.Y.S.2d 265;People v. Talibon, 138 A.D.2d 426, 427, 525 N.Y.S.2d 709). Accordingly, the defendant's conviction of robbery in the second degree under count one of the indictment must be reduced to the lesser-included offense of robbery in the third degree ( seePenal Law §§ 160.10[2][a]; 160.05).

Contrary to the defendant's contention, the delay between his...