People v. Marzano
| Decision Date | 02 February 1989 |
| Citation | 147 A.D.2d 752,537 N.Y.S.2d 343 |
| Parties | The PEOPLE of the State of New York, Respondent, v. John L. MARZANO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
O'Connell & Aronowitz, Albany (Stephen Coffey, of counsel), for appellant.
Linden D. Summers, III, Sp. Prosecutor, Oneonta, for respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from a judgment of the County Court of Otsego County (Mogavero, Jr., J.), rendered February 29, 1988, upon a verdict convicting defendant of the crime of intimidating a witness in the second degree.
The incident underlying defendant's conviction occurred at about 11:30 P.M. on May 8, 1987 in a tavern in the City of Oneonta, Otsego County. There, the complainant was confront by several individuals, including defendant, whose remarks and comments led complainant to believe that these individuals knew he was a confidential informant for the State Police in an undercover investigation of the illegal sale of drugs.
Complainant testified that defendant called him a "Nark", spat at him, grabbed him, hit him two or three times, pinned him up against a wall and choked him, saying, Complainant, a boxer for 11 years, stated that several other members of the group also struck him during this encounter, and that he then pulled out a can of dog repellent, sprayed it and punched defendant in the face about six times, after which complainant was struck on the head with a beer bottle, which broke. Complainant initially testified that he was certain it was defendant who struck him with the beer bottle, but later testified that he was not certain whether it was defendant or another member of the group. Complainant was subsequently taken to the police station, where he told the officers what happened, and then to the hospital.
Among the elements of the crime of which defendant has been convicted is that he intentionally caused "physical injury" to complainant (Penal Law § 215.16[2] ). "Physical injury" is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00[9] ). There is no proof of any impairment of complainant's physical condition, and we agree with defendant that the evidence does not support a finding of substantial pain. Complainant testified that he sustained several cuts and bruises which caused him pain. When asked to describe the pain, complainant testified "It was...
To continue reading
Request your trial
-
People v. Reynolds
...749, 749-750; People v Cancer, 232 A.D.2d 875, 876, lv denied 89 N.Y.2d 984; cf., People v McDowell, 28 N.Y.2d 373, 375; People v Marzano, 147 A.D.2d 752, 753). Likewise, sufficient record evidence exists to support the conclusion that defendant was in possession of a weapon. According to t......
-
People v. McCummings
...358; People v. Brown, 187 A.D.2d 872, 590 N.Y.S.2d 309, lv. denied 81 N.Y.2d 785, 594 N.Y.S.2d 732, 610 N.E.2d 405; People v. Marzano, 147 A.D.2d 752, 537 N.Y.S.2d 343). The trial evidence was, however, sufficient to sustain a conviction of attempted assault in the second degree and, inasmu......
-
People v. Brown
...he sustained was the submission of photographs of his injuries taken a short time after the incident. Our holding in People v. Marzano, 147 A.D.2d 752, 537 N.Y.S.2d 343 requires reversal of the second degree assault conviction on these facts. The evidence was insufficient to prove "physical......