Opinion
756 KA 17-01154
12-23-2022
The PEOPLE of the State of New York, Respondent, v. Timothy M. ANDERSON, Defendant-Appellant.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JONATHAN GARVIN OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
JILL L. PAPERNO, ACTING PUBLIC DEFENDER, ROCHESTER (JONATHAN GARVIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of assault in the second degree ( Penal Law § 120.05 [12] ), arising from an incident in which he attacked a 69-year-old man employed by a restaurant as a security officer, who was preventing defendant from entering the restaurant because defendant was attempting to bring outside liquor into the establishment. During the incident, defendant repeatedly struck the security officer in the head with his hands, and the video of the incident shows defendant kicking the officer in the head as the officer lay on the ground. Defendant contends that the verdict is against the weight of the evidence with respect to the element of physical injury. We affirm.
Physical injury is defined as "impairment of physical condition or substantial pain" ( Penal Law § 10.00 [9] ). At trial, the People did not contend that the victim's physical condition was impaired. Rather, they relied solely on the evidence that the victim suffered substantial pain. " ‘[S]ubstantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain" ( People v. Chiddick , 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ). "Factors relevant to an assessment of substantial pain include the nature of the injury, viewed objectively, the victim's subjective description of the injury and his or her pain, whether the victim sought medical treatment, and the motive of the offender" ( People v. Haynes , 104 A.D.3d 1142, 1143, 960 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ). "Motive is relevant because an offender more interested in displaying hostility than in inflicting pain will often not inflict much of it" ( Chiddick , 8 N.Y.3d at 448, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ). Here, photos of the injury were introduced at trial, and the security officer testified that, after the attack, he was dizzy, light-headed and had a pain level above 81/2 out of 10, and that, for up to a month thereafter, he had pain in his head. In addition, the victim was prescribed ibuprofen for the pain, he obtained emergency medical treatment, and he followed up with further treatment with his own physician. Furthermore, the video recording of the incident shows that defendant engaged in an unprovoked attack on an elderly security guard with the obvious intent to cause harm. Viewing the evidence in light of the elements of the crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence on the issue of physical injury (see People v. Talbott , 158 A.D.3d 1053, 1054, 69 N.Y.S.3d 453 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 109, 103 N.E.3d 1256 [2018] ; see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
Finally, we note that the certificate of conviction must be corrected to reflect that Joanne M. Winslow, J., presided at trial and sentencing (see People v. McKay , 197 A.D.3d 992, 993, 153 N.Y.S.3d 347 [4th Dept. 2021], lv denied 37 N.Y.3d 1060, 154 N.Y.S.3d 639, 176 N.E.3d 675 [2021] ).