People v. Perry
| Decision Date | 12 November 2014 |
| Docket Number | 2012-03741 |
| Citation | 996 N.Y.S.2d 195,2014 N.Y. Slip Op. 07689,122 A.D.3d 775 |
| Court | New York Supreme Court — Appellate Division |
| Parties | The PEOPLE, etc., respondent, v. Eli PERRY, appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondent.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Modica, J.), rendered March 23, 2012, as amended April 2, 2012, convicting him of assault in the second degree (two counts), attempted assault in the second degree (two counts), criminal possession of stolen property in the third degree (two counts), criminal possession of stolen property in the fourth degree (two counts), unauthorized use of a vehicle in the third degree, resisting arrest, criminal mischief in the fourth degree, and aggravated unlicensed operation of a motor vehicle in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the second degree under count two of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
On February 21, 2011, the defendant attempted to evade the police during a car chase through Queens. During the chase, he twice struck the pursuing police vehicle with the stolen vehicle he was driving. After abandoning his vehicle, the defendant fled on foot from the pursuing police officers and struggled with them as they placed him under arrest.
The defendant contends that the evidence was legally insufficient to prove that either police officer involved in the vehicle chase suffered a “physical injury” (Penal Law § 10.00[9] ) as required for a conviction of assault in the second degree under Penal Law § 120.05(3). Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we agree with the defendant that it was legally insufficient to establish, beyond a reasonable doubt, that Sergeant Aaron Klein sustained a “physical injury” within the meaning of Penal Law § 10.00(9) as alleged in count two of the indictment. Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). Sergeant Klein did not testify at trial. His medical records, which were admitted into evidence, indicated that he suffered a laceration to a finger on his right hand, with abrasions, pain, and swelling. While it is true that, to constitute physical injury, the pain caused by such a wound need not “be severe or intense to be substantial” (People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ), it must, at a minimum, cause “more than slight or trivial pain” (id. at 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ) or, to some extent, result in the impairment of the use of the finger (see Penal Law § 10.00[9] ). No evidence was introduced that the injuries sustained by Sergeant Klein caused him more than trivial pain, or that the use of his finger was impaired by these injuries (see People v. Zalevsky, 82 A.D.3d 1136, 1137, 918 N.Y.S.2d 790 ; People v. Baksh, 43 A.D.3d 1072, 845 N.Y.S.2d 343 ; People v. Richmond, 36 A.D.3d 721, 722, 826 N.Y.S.2d 748 ). Accordingly, the defendant's conviction of assault in the second degree under count two of the indictment must be vacated, and that count of the indictment must be dismissed.
However, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish that Officer Matthew Lewis sustained a “physical injury.” Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we find that, contrary to the defendant's contention, the verdict of guilt as to assault in the second degree with respect to Officer Lewis was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). Officer Lewis testified at trial that he “bang [ed]” or “smash[ed]”...
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