You are here: / / THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND...
, ,

THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION VACATED; UNPRESERVED ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT). ​

The Second Department, vacating the assault second conviction, considering the issue in the interest of justice, determined the evidence of physical injury was legally insufficient:

Viewing the evidence in the light most favorable to the prosecution … , it was legally insufficient to establish, beyond a reasonable doubt, that the child 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”… . The several witnesses described only a minor injury, stated variously that they saw “a redness” on the child’s cheek, or a slight swelling under his eye and cheek, or a bruise to the right cheek, which was treated with a cold pack. Nor did the record support a finding that the child complainant experienced substantial pain because he experienced only tenderness for one to two hours after the incident. Accordingly, there was insufficient evidence that the child complainant suffered a “physical injury” within the meaning of Penal Law § 10.00(9) … . People v Bernazard, 2020 NY Slip Op 07083, Second Dept 11-25-20

 

You might also like
THERE REMAINED QUESTIONS OF FACT WHETHER DEFENDANTS CREATED THE ICY CONDITION AND WHETHER THEY HAD CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
QUESTION OF FACT WHETHER FIDUCIARY TOLLING RULE EXTENDED STATUTE OF LIMITATIONS; ISSUE CAN BE ADDRESSED ON APPEAL EVEN THOUGH NOT RAISED BELOW.
EVIDENCE OF COMPLIANCE WITH THE NOTICE-OF-FORECLOSURE MAILING REQUIREMENTS OF RPAPL 1304 FIRST SUBMITTED IN REPLY SHOULD NOT HAVE BEEN CONSIDERED; THE EVIDENCE THE BANK HAD STANDING TO BRING THE FORECLOSURE ACTION WAS INSUFFICIENT (SECOND DEPT). ​
DEFENDANTS’ DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THE ASSUMPTION OF THE RISK DOCTRINE APPLIED TO PLAINTIFF’S USE OF DEFENDANTS’ HOVER BOARD IN DEFENDANTS’ DRIVEWAY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Petitioners’ Properties Not Close Enough to Proposed Development to Confer Standing to Allege Violations of the State Environmental Quality Review Act (SEQRA)
ALTHOUGH THE MARRIAGE WAS A NULLITY, DEFENDANT IS ENTITLED TO MAINTENANCE AND EQUITABLE DISTRIBUTION (SECOND DEPT). ​
“Assessor’s Formula” for Determining Property Tax Assessment for Golf Course Approved
THE COURT NEVER ENTERED AN ORDER RE: DEFENDANT’S MOTION TO DISMISS; THEREFORE THE TIME FOR DEFENDANT TO INTERPOSE AN ANSWER IN THIS FORECLOSURE ACTION NEVER STARTED TO RUN (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE DRY BUT ALLEGEDLY SLIPPERY FLOOR WAS NOT ACTIONABLE IN THIS SLIP AND FALL... THE APPLICATION FOR A WARRANT FOR THE SEARCH OF DEFENDANT’S CELL PHONE...