People v. Cancer

• Decision Date: 31 October 1996
• Citation: 232 A.D.2d 875,649 N.Y.S.2d 492
• Parties: The PEOPLE of the State of New York, Respondent, v. Eric CANCER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 492

649 N.Y.S.2d 492

232 A.D.2d 875

The PEOPLE of the State of New York, Respondent, v. Eric CANCER, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 31, 1996.

Eugene P. Devine, Public Defender (Jeanne M. Heran, of counsel), Albany, for appellant.

Sol Greenberg, District Attorney (Christopher Horn, of counsel), Albany, for respondent.

Before CARDONA, P.J., and MERCURE, CASEY, SPAIN and CARPINELLO, JJ.

CARDONA, Presiding Justice.

Appeal from a judgment of the Supreme Court (Harris, J.), rendered July 17, 1992 in Albany County, upon a verdict convicting defendant of the crimes of assault in the second degree, criminal mischief in the fourth degree, resisting arrest and obstructing governmental administration in the second degree.

On November 30, 1990, at approximately 7:17 P.M., Albany Police Detectives James Lyman and Kevin Breen responded to complaints of a disturbance at 94 Northern Boulevard in the City of Albany. When the police officers arrived, they were informed that there had been an altercation involving several people during which a man, later identified as defendant, kicked in the front door of an apartment at that location and then fled the scene with three companions in a white jeep. The officers received a radio report of the jeep's location and, accompanied by two witnesses, Dawn Walker and Yakema Tarver, drove to where the jeep was parked in order to have the witnesses identify the jeep and the men allegedly involved in the incident at 94 Northern Boulevard. Upon arriving, Lyman and Breen observed a large crowd of people around the area where the jeep was parked. After Walker exited the police vehicle and identified both the jeep and two of defendant's codefendants, the two officers attempted to move the crowd away from the jeep and onto the sidewalk.

At one point, Breen encountered a man, later identified as defendant, who was very hostile and agitated. Breen saw defendant point his finger in the direction of Tarver, who had exited the police vehicle, and heard defendant say, "I'm going to get [her]." Breen ordered defendant to get back; however, defendant ignored him and tried to push him aside. Breen then told defendant that he was under arrest. Defendant proceeded to swing Breen onto the back of a parked police car and punch him in the mouth. Defendant bent Breen over the back of the police car, climbed on top of him and began to choke Breen until Lyman was able to pull defendant away. Thereafter, in June 1991, an indictment was handed up charging defendant with assault in the second degree, criminal mischief in the fourth degree, obstructing governmental administration in the second degree and resisting arrest. Several of the other participants in the November 30, 1990 melee were also charged with various crimes and, following a joint trial, defendant was found guilty of all four charges. Defendant appeals.

Initially, we reject defendant's contention that the record evidence was insufficient to sustain a conviction for assault in the second degree. ¹ Viewing the evidence in the light most favorable to the People, we conclude that "the People's proof sufficiently provided a valid line of reasoning and permissible inferences from which a jury could find guilt beyond a reasonable doubt" (People v. Page, 225 A.D.2d 831, 638 N.Y.S.2d 985, 986, lv. denied 88 N.Y.2d 883, 645 N.Y.S.2d 457, 668 N.E.2d 428; see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant argues that there is insufficient proof of "physical injury", which is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00[9] ). Generally, whether physical injury has been proved is a question for the trier of fact (see, People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951).

Here, Breen testified that as a result of the altercation, he received a cut lip, abrasions, "choke marks" around his throat, a scraped knee and severe back pain from being bent backward during the attack. Breen testified that he suffered substantial pain and muscle tightness for seven days as a result of these injuries, requiring him to take pain relievers and hot baths. Breen also indicated that he did not miss any days from work as a result of his injuries because he was not scheduled to work on the days following the incident.

While defendant maintains that this proof "falls short of the required objective level of proof to establish physical injury" (People v. McCummings, 203 A.D.2d 656, 657, 610 N.Y.S.2d 634), in our view, the evidence of Breen's injuries and resulting pain was sufficient to raise a jury question on the issue of physical injury (see, People v. Messier, 191 A.D.2d 819, 820, 594 N.Y.S.2d 453, lv. denied 81 N.Y.2d 1017, 600 N.Y.S.2d 205, 616 N.E.2d 862; People v. Gray, 189 A.D.2d 922, 923, 592 N.Y.S.2d 814, lv. denied 81 N.Y.2d 886, 597 N.Y.S.2d 947, 613 N.E.2d 979; People v. Fortuna, 188 A.D.2d 683, 684, 591 N.Y.S.2d 212, lv. denied 81 N.Y.2d 839, 595 N.Y.S.2d 738, 611 N.E.2d 777; People v. Tellis, 156 A.D.2d 260, 261, 548 N.Y.S.2d 648, lv. denied 76 N.Y.2d 743, 558 N.Y.S.2d 905, 557 N.E.2d 1201). Furthermore, the jury was entitled to credit Breen's testimony as to the duration and degree of pain that he suffered (see, People v. Guidice, supra, at 636, 612 N.Y.S.2d 350, 634 N.E.2d 951; cf., People v. McCummings, supra, at 657, 610 N.Y.S.2d 634; Matter of Scott QQ., 187 A.D.2d 867, 589 N.Y.S.2d 712).

Defendant next argues that Supreme Court erred in allowing the jury to hear unduly prejudicial testimony from Walker during the People's direct case against defendant's mother, codefendant Sallie Cancer, on a charge of obstructing governmental...