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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

 

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