People v. Cheeks
| Decision Date | 14 May 1990 |
| Parties | The PEOPLE, etc., Respondent, v. Philip CHEEKS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Stephanie T. Knowles, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Spiros A. Tsimbinos, of counsel), for respondent.
Before KUNZEMAN, J.P., and RUBIN, EIBER and MILLER, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohn, J.), rendered August 31, 1987, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50
The evidence adduced at trial was legally insufficient to establish that the complainant suffered "physical impairment" (People v. McDowell, 28 N.Y.2d 373, 375, 321 N.Y.S.2d 894, 270 N.E.2d 716), or "substantial pain" (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358). General undeveloped assertions that a victim felt pain when hit does not establish "physical injury" (see, Penal Law, § 10.00[9]; People v. Holden, 148 A.D.2d 635, 539 N.Y.S.2d 95; People v. Williams, 101 A.D.2d 870, 476 N.Y.S.2d 19). Here, the complainant testified that he experienced pain when the defendant hit him twice over the head with a gun. However, he did not indicate the duration or degree of pain. He also testified that he did not seek medical assistance or treatment. The only other testimony adduced relative to his injury was an officer's observation of a "small abrasion" on the complainant's head. Thus, the witnesses never elaborated on the duration or degree of the pain, nor provided some other objective indicia of "substantial pain" to properly sustain a charge of assault in the third degree (Penal Law § 120.00[1].
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