People v. Stanback

• Decision Date: 12 April 2017
• Citation: 149 A.D.3d 877,51 N.Y.S.3d 201
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Carl STANBACK, appellant.

149 A.D.3d 877

51 N.Y.S.3d 201

The PEOPLE, etc., respondent,

v.Carl STANBACK, appellant.

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

April 12, 2017.

Lynn W.L. Fahey, New York, NY (Anna Pervukhin of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Jean M. Joyce of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN, and FRANCESCA E. CONNOLLY, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered November 13, 2015, convicting him of assault in the second degree and criminal possession of a firearm, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the evidence was legally insufficient to support the finding that the complainant suffered "physical injury," an element of the crime of assault in the second degree (Penal Law § 120.05[2] ). The necessary element of physical injury is defined by Penal Law § 10.00(9) as either the impairment of physical condition or substantial pain (see People v. McDowell, 28 N.Y.2d 373, 375, 321 N.Y.S.2d 894, 270 N.E.2d 716 ). "[I]mpairment of physical condition" does not require a victim's incapacitation

(People v. Tejeda, 78 N.Y.2d 936, 938, 573 N.Y.S.2d 633, 578 N.E.2d 431 [internal quotation marks omitted] ). " ‘ [S]ubstantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain," although "[p]ain 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 ). "Whether the ‘substantial pain’ necessary to establish an assault charge has been proved is generally a question for the trier of fact" (People v. Rojas, 61 N.Y.2d 726, 727, 472 N.Y.S.2d 615, 460 N.E.2d 1100 ; see Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 ; People v. Monserrate, 90 A.D.3d 785, 787, 934 N.Y.S.2d 485 ).

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the element of 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, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo,...