Opinion
March 20, 1989
Appeal from the Supreme Court, Kings County (Quinones, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The evidence adduced at trial was legally insufficient to establish that the complainant suffered "physical impairment" (see, People v. McDowell, 28 N.Y.2d 373), or "substantial pain" (Matter of Philip A., 49 N.Y.2d 198, 200). General undeveloped assertions that a victim felt pain when hit, in a record that does not indicate that the pain lasted for more than a short time, do not establish "physical injury" (see, Penal Law § 10.00; People v. Williams, 101 A.D.2d 870). Here, although the complainant testified she was struck several times prior to the rape, she did not elaborate on her injuries. She never testified as to the duration of the pain (see, People v. Goins, 129 A.D.2d 733, lv denied 70 N.Y.2d 704; see also, People v. Tabachnik, 131 A.D.2d 611) and the fact that the complainant "was examined at a hospital sheds no light on the nature of the pain" (People v Marrero, 88 A.D.2d 998, 999-1000). This is especially so where, as in the instant case, the complainant's hospital records were lost by the hospital and thus never received into evidence at trial. In sum, as the People "failed to develop with particularity the degree and duration of the pain sustained by the complainant and also failed to offer the hospital record in evidence" (People v Baum, 143 A.D.2d 1024, 1025), they have failed to establish that the complainant sustained physical injury, a necessary element of the instant second degree assault charge (Penal Law § 120.05; People v. Baum, supra).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05) or without merit (see, People v. Fappiano, 139 A.D.2d 524, lv denied 72 N.Y.2d 918; People v. Haupt, 128 A.D.2d 172, affd 71 N.Y.2d 929). Bracken, J.P., Kunzeman, Spatt and Harwood, JJ., concur.