Opinion
July 2, 1992
Appeal from the Supreme Court, Bronx County (Elbert Hinkson, J.).
Appellant Jamel Blacknall and his brother William Blacknall were tried jointly on charges of robbery and burglary resulting from an incident that occurred on April 2, 1988. As is here relevant, the proof at trial showed that the brothers entered the apartment of the complainant, Angel Rivera, and that one of the brothers grabbed Rivera around the neck while the other demanded to know where Rivera's money was. After the brothers had located Rivera's money and taken it from him they punched him in the stomach and fled. When asked if he felt any pain when he was punched, Rivera testified: "Yes, at that moment I felt a little pain, but after that I tried to get after them."
The jury convicted appellant of two counts of robbery in the second degree, one count of burglary in the first degree and one count of burglary in the second degree.
Proof of robbery in the second degree (Penal Law § 160.10 [a]) and of burglary in the first degree (Penal Law § 140.30) entails a showing that the defendant or other participant in the crime physically injured a non-participant during the commission of the crime or in the course of immediate flight therefrom. "Physical injury" is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00). While the issue of whether the People have proven that defendant caused the victim substantial pain is generally one for the jury (see, People v. Rojas, 61 N.Y.2d 726, 727), there is a threshold level below which the question becomes a matter of law. In Matter of Philip A. ( 49 N.Y.2d 198, 200), the Court held that where the victim testifies merely that he "was hit, that it caused him pain, the degree of which was not spelled out", the evidence was insufficient to establish substantial pain. That is the case here as well, where there was absolutely no indication respecting the degree of pain suffered by the complainant or of any residual impairment or need for medical attention (see, People v. Brown, 145 A.D.2d 301, lv denied 73 N.Y.2d 1012; People v. Oquendo, 134 A.D.2d 203, lv denied 70 N.Y.2d 959).
We are satisfied that the error with respect to the sufficiency of the evidence of physical injury was sufficiently preserved by counsel's motion to dismiss based on the sufficiency of the evidence, and in any event would be reviewable as a matter of law (see, People v. Kilpatrick, 143 A.D.2d 1).
The appellant's remaining points have been considered and found to be without merit.
Concur — Murphy, P.J., Ellerin, Wallach, Asch and Rubin, JJ.