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Evidence of Physical Injury (re Assault) Insufficient

In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:

Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury”…, and the judgment must be reversed and the indictment dismissed. People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13

 

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