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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s Assault 2nd conviction, determined the evidence of “physical injury” was legally insufficient:

… [T]he evidence, when viewed in the light most favorable to the prosecution … , was legally insufficient to 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” … . At the time of the incident, the complainant did not seek medical attention and proceeded on his way. He testified at trial that he continued to have pain in his back and neck for approximately three weeks, had pain when he lifted “something” when working in construction, without specifying what “something” was, and was unable to use a pillow to sleep. However, he never sought medical treatment after the incident, claiming that he did not need it, and he used only a topical pain relief cream to relieve pain. Under these circumstances, there was insufficient evidence from which a jury could rationally infer that the complainant suffered substantial pain or impairment of his physical condition … . People v Bowen, 2021 NY Slip Op 04236, Second Dept 7-7-21

 

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