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ROBBERY AND ASSAULT SECOND CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE OF THE WEAKNESS OF THE EVIDENCE OF PHYSICAL INJURY (SECOND DEPT).

The Second Department, reducing defendant’s convictions, determined the robbery and assault second degree convictions were against the weight of the evidence because of the weakness of the evidence of physical injury. The convictions were reduced to robbery and assault third degree:

“Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). …

Here, the victim gave testimony about an incident in which the defendant attacked her and forcibly stole property from her. During the incident, the defendant pushed the victim down onto a bed, bound her wrists with a coaxial cable, placed the cable around her neck, and placed her in a choke hold with his arm across her throat. After the incident, the victim had an indentation on her wrist where the cord had been tied, her wrist was sore and had redness, and she had a red mark on her neck. She was “pretty numb” at the time and was not experiencing pain. She declined to go to the hospital. A few days later, she had difficulty swallowing and her throat was “kind of sore” for “[j]ust a couple of days.” When she testified before the grand jury, approximately one week after the incident, she was asked if she had any pain or discomfort, and she answered, “just the muscle in my arm.” Under these particular facts, the weight of the evidence does not support a finding that the victim suffered impairment of physical condition or substantial pain. Accordingly, we reduce the conviction of robbery in the second degree to robbery in the third degree … . People v Tactikos, 2020 NY Slip Op 05535, Second Dept 10-7-20

 

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