People v. Rios

• Decision Date: 21 June 2016
• Citation: 2016 N.Y. Slip Op. 04891,33 N.Y.S.3d 262,142 A.D.3d 28
• Parties: The PEOPLE of the State of New York, Respondent, v. Lino RIOS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 28

33 N.Y.S.3d 262

2016 N.Y. Slip Op. 04891

The PEOPLE of the State of New York, Respondent,

v.Lino RIOS, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

June 21, 2016.

Robert S. Dean, Center for Appellate Litigation, New York (Claudia B. Flores of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christine DiDomenico and Hilary Hassler of counsel), for respondent.

PETER TOM, J.P., ANGELA M. MAZZARELLI, RICHARD T. ANDRIAS, SALLIE MANZANET–DANIELS, ELLEN GESMER, JJ.

MANZANET–DANIELS, J.

“Physical injury,” as defined in the Penal Law, means “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9 ] ). Although the issue is generally one for the trier of fact, “there is an objective level ... below which the question is one of law” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] [twice slapping complainant, and causing red marks and pain, insufficient to establish “physical injury”]; People v. Rolando, 168 A.D.2d 578, 562 N.Y.S.2d 794 [2d Dept.1990] [complainant's testimony as to pain caused by bruised shoulder and scratches insufficient to establish “physical injury” in the absence of medical records or treatment], lv. denied 77 N.Y.2d 910, 569 N.Y.S.2d 943, 572 N.E.2d 626 [1991] ).

The evidence convicting defendant of robbery in the second degree (Penal Law § 160.10[2][a] [causes physical injury] ) was legally insufficient to establish the element of “physical injury.” The photographs in evidence depict only slight redness on the complainant's neck and hands. They do not show cuts, abrasions, lacerations, or anything of the kind. The victim did not seek medical treatment. There are no medical records. Further, inasmuch as the victim in this case did not testify, there is no evidence concerning even his subjective experience of pain. Without any testimony from the complainant or medical records substantiating same, it is impossible to know if he was in significant pain, or whether the pain to his jaw was slight or trivial (see e.g. Matter of Jose B., 47 A.D.3d 461, 849 N.Y.S.2d 525 [1st Dept.2008] [repeated punches, together with victim's testimony that he suffered pain, insufficient to demonstrate physical injury in the absence of bruising or a reduction in range of motion]; People v. Galletta, 171 A.D.2d 178, 575 N.Y.S.2d 825 [1st Dept.1991] [bruises that healed within a week, together with victim's description of pain, insufficient to establish physical injury], lv. denied 79 N.Y.2d 947, 583 N.Y.S.2d 201, 592 N.E.2d 809 [1992] ; People v. Ingram, 143 A.D.2d 448, 532 N.Y.S.2d 444 [3d Dept.1988] [red marks on victim who was struck in the face and arm and pushed to the ground and who testified that she suffered pain insufficient to establish physical injury] ). The testimony of a police officer after the fact as to the victim's state of shock and nervousness is not a sufficient substitute for the testimony of the victim as to his injuries, medical corroboration, or even photos that objectively demonstrate more than seemingly insubstantial injuries.

Matter of Dominick V. , 223 A.D.2d 453, 453, 637 N.Y.S.2d 73 (1st Dept.1996), which the dissent relies on for the proposition that “the absence of medical treatment is not dispositive,” involved a complainant who testified as to his injuries. People v. Deas , 102 A.D.3d 464, 961 N.Y.S.2d 10 (1st Dept.2013), lv. denied 20 N.Y.3d 1097, 965 N.Y.S.2d 793, 988 N.E.2d 531 (2013) involved a victim who testified at length as to the injuries to his shin and elbow. Similarly, the victims testified in People v. Mullings , 105 A.D.3d 407, 961 N.Y.S.2d 470 (1st Dept.2013), lv. denied 21 N.Y.3d 945, 968 N.Y.S.2d 7, 990 N.E.2d 141 [2013] [victim had facial bruising or swelling which made it difficult for him to eat or to sleep] and People v. James , 2 A.D.3d 291, 769 N.Y.S.2d 38 (1st Dept.2003), lv. denied 2 N.Y.3d 741, 778 N.Y.S.2d 467, 810 N.E.2d 920 [2004] [victim was punched in the face, causing pain, swelling, and headaches for a week]. In contradistinction, this case involves minor injuries (as the photographs attest), a victim who did not testify as to his pain or injuries, and an utter lack of medical proof.

Although defendant made only a general motion for a trial order of dismissal at the close of the People's case, the issue was clearly raised. The People in opposing the motion argued that the jury could infer “substantial pain and physical impairment based on the markings on [complainant's] face.” While denying the motion, the court noted that there was a reasonable view of the evidence that defendant committed third-degree robbery (which does not have a physical injury element) as opposed to second-degree robbery—a factor that influenced the court's decision to grant the People's motion to charge the lesser included offense of robbery in the third degree. In reviewing the photos the court noted that there was “redness” to the complainant, stating, “Whether that's physical injury or not, I don't know.” The issue was revisited when the court ruled on defendant's posttrial 330.30 motion.

In light of our holding, it is unnecessary to address defendant's further argument that his sentence was excessive.

Accordingly, the judgment of the Supreme Court, New York County (Marcy L. Kahn, J.), rendered August 12, 2013, convicting defendant, after a jury trial, of robbery in the second degree and sentencing him, as a second violent felony offender, to a term of 11 years, should be modified, on the law, to reduce defendant's conviction to the crime of robbery in the third degree, and to remand the matter for resentencing.

All concur except TOM, J.P. and ANDRIAS, J. who dissent in an Opinion by ANDRIAS, J.

ANDRIAS, J. (dissenting).

Defendant's challenge to the legal sufficiency of the evidence is unpreserved, and does not warrant review in the interests of justice. Even if the claim is considered, the verdict is based on legally sufficient evidence and is not against the weight of the evidence. Accordingly, I respectfully dissent.

Defendant's general motion to dismiss at the close of the People's case failed to specify any grounds for dismissal (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ) and he did not make a specific challenge to the sufficiency of the evidence supporting the physical injury element of second-degree robbery until his postverdict CPL 330.30 motion, which lacked any preservation effect (see People v. Hines, 97 N.Y.2d 56, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001] ). The court “did not expressly decide, in response to protest, the issues now raised on appeal” (People v. Miranda, 27 N.Y.3d 931, 932, 30 N.Y.S.3d 600, 50 N.E.3d 224 [2016] ) at a charge conference dealing only with the distinct issue of submission of a lesser offense, or elsewhere during the trial.

In any event, the element of “physical injury,” requires proof that a victim's injuries were more than mere “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] [internal quotation marks omitted] ), and that they caused “more than slight or trivial pain” (People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; see also People v. Rosario, 121 A.D.3d 424, 425, 993 N.Y.S.2d 313 [1st Dept.2014], lv. denied 25 N.Y.3d 1170, 15 N.Y.S.3d 302, 36 N.E.3d 105 [2015] ). “Relatively minor injuries, including injuries not requiring medical treatment, may meet the statutory threshold” (People v. Deas, 102 A.D.3d 464, 961 N.Y.S.2d 10 [1st Dept.2013], lv. denied 20 N.Y.3d 1097, 965 N.Y.S.2d 793, 988 N.E.2d 531 [2013] [internal citations omitted]; Matter of Dominick V., 223 A.D.2d 453, 637 N.Y.S.2d 73 [1st Dept.1996] [the fact that a victim does not seek or receive medical treatment is not dispositive with respect to whether the victim suffered physical injury] ). Whether the evidence...