People v. Jimenez

• Decision Date: 09 February 1982
• Citation: 55 N.Y.2d 895,449 N.Y.S.2d 22,433 N.E.2d 1270
• Parties: , 433 N.E.2d 1270 The PEOPLE of the State of New York, Respondent, v. Juan JIMENEZ, Jr., Also Known as John Lopez, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 22

449 N.Y.S.2d 22

55 N.Y.2d 895, 433 N.E.2d 1270

The PEOPLE of the State of New York, Respondent, v. Juan JIMENEZ, Jr., Also Known as John Lopez, Appellant.

Court of Appeals of New York.

Feb. 9, 1982.

Erica Horwitz and William E. Hellerstein, New York City, for appellant.

Elizabeth Holtzman, Dist. Atty. (Robert G. Cohen, Asst. Dist. Atty., of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 79 A.D.2d 1012, 434 N.Y.S.2d 251, 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, 424 N.Y.S.2d 418, 400 N.E.2d 358) or "impairment of a physical condition" (People v. McDowell, 28 N.Y.2d 373, 375, 321 N.Y.S.2d 894, 270 N.E.2d 716).

Defendant's other contentions are either not preserved for review or do not warrant reversal by this court.

COOKE, C. J., and JASEN, GABRIELLI, WACHTLER, FUCHSBERG and MEYER, JJ., concur.

JONES, J., takes no part.

Order modified in accordance with the memorandum herein and, as so modified, affirmed.