Opinion
2003-774 RO CR.
Decided March 24, 2004.
Appeal by the People from an order of the Justice Court, Town of Clarkstown, Rockland County (C. Johns, J.), dated April 22, 2003, granting defendants' motion to dismiss the accusatory instrument.
Order unanimously reversed on the law, accusatory instrument reinstated, and matter remanded to the court below for all further proceedings.
Present: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
Defendants were charged with assault in the third degree (Penal Law § 120.00). The accusatory instrument stated, in part, that:
"the defendants, with intent to cause physical injury to another person, caused such injury to another person.
The offense was committed under the following circumstances:
The Deponent states that the above listed defendants knocked the deponent to the ground, and then kicked punched him in the head, side and legs, causing redness and swelling to the deponents [sic] head and leg and causing substantial pain."
Thereafter, defendants moved to dismiss the accusatory instrument, on the ground that it was legally insufficient, which motion was granted by order of the court below dated April 22, 2003.
Upon review of the record, we find that the factual allegations contained in the information establish a prima facie case of assault in the third degree and, in particular, satisfy the "physical injury" element of that offense. The foregoing allegations were not the petty slaps, shoves, kicks and the like delivered out of meaness eschewed by the Legislature ( People v. Henderson, 92 NY2d 677, 680).
We note that defendants remaining contentions lack merit. Accordingly, the order is reversed, the accusatory instrument is reinstated and the matter is remanded to the court below for further proceedings.