People v. McDowell

• Decision Date: 16 August 2011
• Docket Number: 11030021
• Parties: People of the State of New York v. Clifford McDowell, Defendant
• Court: New York Court of Appeals Court of Appeals

2011 NY Slip Op 51646

People of the State of New York
v.
Clifford McDowell, Defendant

11030021

New York Miscellaneous Courts

Decided on August 16, 2011

People of the State of New YorkHon. Michael Violante, Niagara County District AttorneyJoseph Scalzo, of Counsel

Defendant: Clifford McDowellMuscato, DiMillo & VonaAngelo A. DiMillo, of Counsel

Leonard Tilney, J.

Defendant, Clifford McDowell (McDowell) was charged with Assault in the second degree in violation of §120.05 (2) of the Penal Law which required physical injury caused by a weapon. The People reduced the charge to the misdemeanor of Assault in the third degree to allow this Court to retain jurisdiction. McDowell moves to dismiss the pleading because it is fatally defective and factually insufficient as a matter of law. He posits it fails to set forth physical injury as contemplated by §120 of the Penal Law.

STATUTE — PENAL LAW §10.0(9) Physical Injury "Physical injury means impairment of physical condition or substantial pain." § 120.00 Assault in the third degree "A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person by means of a

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deadly weapon or a dangerous instrument.

Assault in the third degree is a class A misdemeanor."

STANDARD OF REVIEW

An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15, (2) sets forth allegations which "provide reasonable cause to believe the defendant committed the offence charged" and (3) contains non-hearsay allegations which "establish, if true, every element of the offence charged and the defendant's commission thereof." CPL §100.40(1); People v. Alejandro, 70 NY2d 133 (1987). This third requirement is also known as the "prima facie case" requirement. The Alejandro Court further held that failure to comply with the prima facie case requirement is a jurisdictional defect. This Court notes that the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson, 92 NY2d 677, (1999). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354 at p. 360 (2000).

FACTS FOUND IN COMPLAINT AND SUPPORTING DEPOSITION

Antonio Vasser (Vasser) went to see his brother-in-law, the defendant, Clifford McDowell (McDowell) at his place of business in the Town of Lockport. An altercation ensued with McDowell punching Vasser in the face. Vasser then retreated to his car where McDowell hit him in the face with a stick. Vasser called the police and EMTs administered first aid to the cut on his face. Vasser did not seek further medical attention. The complainant, Niagara County Sheriff Deputy Brett Thompson, observed a laceration to the left cheek area of Vasser's face.

DISCUSSION

The term "physical injury" means "impairment of physical condition or substantial pain". [Penal Law § 10.00(9). "Impairment of physical condition" does not require a victim's incapacitation. People v. Tejeda, 78 NY2d 936, 573 N.Y.S.2d 633, 578 N.E.2d 431 (1991). "Substantial pain" need not "be severe or intense." People v. Chiddick, 8 NY3d, 834 NY.2d 710, 866 N.E.2d 1039 (2007).

In defining the level of "physical injury" that would be necessary for an assault, the drafters intended to exclude such things as "petty slaps, shoves, kicks, and the like." Staff Notes of the Commission on Revision of the Penal Law.

The Appellate Courts are all over the place in what establishes physical injury. For example, a bullet wound is not per se a physical injury, [People vs. Frances, 112 AD2d 167 (2d Dept. 1985)] but being hit with a stick causing bruises and abrasions to face is a physical injury [People v. Young, 236 AD2d 808 (4th Dept. 1997)].

Physical injury may not be established where the victim suffers only small cuts

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and abrasions that do not require stitches, Matter of Shawnell UU, 240 AD2d 947, 659 N.Y.S.2d 531 (3d Dep't 1997); People v. Velasquez, 202 AD2d 1037, 609 N.Y.S.2d...