The objective element, while more elusive, appears to require a threshold level of evidence of a physical injury that could produce pain that was substantial in either its degree or duration. Compare People v. Sloan, 609 N.Y.S.2d 67 (2d Dep't 1994) (victim sought medical treatment for a blackened eye, constant headache, and swollen face as a result of having had her head pushed against a wall), and People v. Livoti, 682 N.Y.S.2d 253 (1st Dep't 1998) (physician confirmed that victim had difficulty eating, sleeping, and speaking as a result of bruised, swollen, and aching neck), with People v. Carney, 579 N.Y.S.2d 157 (2d Dep't 1992) (bruises on arm and neck, without medical report or testimony regarding the nature or extent of victim's pain, was insufficient to meet objective test). The arrest complaint says "Deponent states that as a result of the actions of the defendant, deponent suffered substantial pain, bleeding to her nose, bruising and swelling to her arms and a laceration and bleeding to her chest."
0 A.D.2d 284, 285, 553 N.Y.S.2d 380, 381 (1st Dep't) (sufficient evidence of physical injury where the victim's subjective experience of pain was corroborated by the police officer who took her complaint and was further substantiated by hospital records showing that she had x-rays and a tetanus shot), appeal denied; 76 N.Y.2d 793, 559 N.E.2d 692, 559 N.Y.S.2d 998 (1990); People v. Chesebro, 94 A.D.2d 897, 897-98, 463 N.Y.S.2d 711, 712 (3d Dep't 1983) (issue of physical injury properly was submitted to the jury where the complainant testified that the defendant punched him "hard" causing numbness, bleeding, a cut and soreness for several days although he did not seek medical attention or miss work due to injury); People v. Almonte, 102 Misc.2d 950, 951-53, 424 N.Y.S.2d 868, 869-70 (Sup.Ct.N.Y.Co. 1980) (bleeding laceration requiring emergency outpatient treatment constitutes an impairment of physical condition even without testimony regarding any impairment in activity or function); cf People v. Carney, 179 A.D.2d 818, 818, 579 N.Y.S.2d 157, 158 (2d Dep't) (insufficient evidence of physical injury where the complaining witness did not seek medical attention, did not testify about the nature or extent of her pain and did not testify about the extent to which any of her daily activities were curtailed), appeal denied; 80 N.Y.2d 894, 600 N.E.2d 652, 587 N.Y.S.2d 925 (1992); People v. Oquendo. 134 A.D.2d 203, 204, 521 N.Y.S.2d 5, 6 (1st Dep't 1987) (insufficient evidence of physical injury where the injury suffered "consisted entirely of pain experienced at the time of commission of the crime, the severity of which is undetermined, and some bruising, and there is no indication of any aftereffects"), appeal denied, 70 N.Y.2d 959, 520 N.E.2d 560, 525 N.Y.S.2d 842 (1988); People v. Contreras, 108 A.D.2d 627, 628, 485 N.Y.S.2d 261, 263 (1st Dep't 1985) (testimony about pain, "which is purely subjective and only one factor to be considered," was insufficient to establish physical injury). Based on the evidence presented at trial, a ra
assistance of counsel never be compromised by the personal interests of the attorney representing him, we decline to adopt the per se rule advocated by the dissent, which would require reversal absent a showing of any effect which the conflict may have had on the representation, as expressly contrary to clear and established precedent ( see People v. Konstantinides, 14 N.Y.3d at 14, 896 N.Y.S.2d 284, 923 N.E.2d 567; People v. Abar, 99 N.Y.2d at 411, 757 N.Y.S.2d 219, 786 N.E.2d 1255). Furthermore, the dissent's suggestion that the defendant's trial counsel in this case procured a more favorable disposition with regard to his own charges by failing to zealously represent the defendant at trial is unsupported by the record and is manifestly inconsistent with the evidence of meaningful representation afforded by trial counsel, who provided vigorous and competent representation to the defendant at every stage of the proceedings ( see People v. Thomas, 201 A.D.2d 687, 688, 608 N.Y.S.2d 251;People v. Carney, 179 A.D.2d 818, 819, 579 N.Y.S.2d 157).
We agree with defendant that the evidence is legally insufficient to establish that the victim suffered either "impairment of [a] physical condition" or "substantial pain" (Penal Law ยงยง 10.00). Although the victim testified that she could not move her two swollen fingers for approximately two weeks, that testimony was not further explained and thus is legally insufficient to establish the manner in which the victim's activities were curtailed or limited ( see People v Windbush, 163 AD2d 591, 592-593, lv denied 76 NY2d 945; see also People v Carney, 179 AD2d 818, lv denied 80 NY2d 894; cf. People v Driver, 248 AD2d 172, 172-173, lv denied 92 NY2d 851). The victim failed to testify with respect to the degree of pain she experienced ( see Matter of Philip A., 49 NY2d 198, 200; Carney, 179 AD2d at 818; People v Dorsey, 112 AD2d 536, 537, lv denied 66 NY2d 763; cf. People v Jackson, 232 AD2d 193, 194, lv denied 89 NY2d 924; People v Williams, 127 AD2d 718, lv denied 69 NY2d 1011), nor does the testimony concerning the injuries sustained by the victim support the inference that she experienced substantial pain ( cf. People v Evans, 250 AD2d 484, lv denied 92 NY2d 924).
Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15). However, we agree with the defendant's contention that the People failed to present any evidence as to physical impairment or pain or the extent of pain suffered to establish "physical injury" (Penal Law ยง 10.00; ยง 120.00) for the incident occurring on March 10, 1995 ( see, Matter of Philip A., 49 N.Y.2d 198, 200; People v. Briggs, 220 A.D.2d 762; People v. Carney, 179 A.D.2d 818; People v. Smith, 176 A.D.2d 904, 905). Accordingly, the conviction of assault in the third degree under the ninth count of the indictment is reversed.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, the petition is dismissed, and the matter is remitted to the Family Court, Orange County, for the purpose of entering an order pursuant to Family Court Act ยง 375.1. There was insufficient evidence to establish that the complainant suffered a "physical injury", an essential element of assault in the third degree ( see, Penal Law 120.00; Matter of Philip A., 49 N.Y.2d 198; People v. Briggs, 220 A.D.2d 762; Matter of Robert C., 185 A.D.2d 845; People v. Carney, 179 A.D.2d 818; People v. Foster, 162 A.D.2d 703; People v. Holden, 148 A.D.2d 635; Matter of Robin B., 78 A.D.2d 679). In light of the foregoing, we do not reach the appellant's remaining contentions.
Ample evidence supports the finding that respondent caused the victim "physical injury" (Penal Law ยง 10.00). The victim testified that, as a result of the attack, he sustained bruises to his face, head and both knees, and soreness to his neck, shoulder and hands, all of which lasted several weeks and impaired his ability to perform regular activities, and eyewitnesses corroborated the injuries to the victim's face ( see, People v Harris, 198 A.D.2d 117, lv denied 83 N.Y.2d 853; compare, People v Carney, 179 A.D.2d 818, lv denied 80 N.Y.2d 894 [victim did not testify about the nature or extent of her pain or state that any of her daily activities were curtailed]). The absence of medical treatment is not dispositive ( People v Granvy, 182 A.D.2d 540, 541, lv denied 80 N.Y.2d 904, citing People v Brown, 176 A.D.2d 155, affd 81 N.Y.2d 798)
Notwithstanding the fact that the evidence submitted to the Grand Jury must be viewed in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), there was legally insufficient evidence submitted to find reasonable cause to believe that the defendant committed the crimes charged in the indictment. The evidence before the Grand Jury was not sufficient to find reasonable cause to believe that the defendant recklessly damaged property in an amount exceeding $250 (see, Penal Law ยง 145.00), nor was there any proof that the defendant caused physical injury to another person more serious than scratches (see, e.g., People v. Jimenez, 55 N.Y.2d 895; Matter of Philip A., 49 N.Y.2d 198; People v. Carney, 179 A.D.2d 818; People v Tabachnik, 131 A.D.2d 611). Bracken, J.P., O'Brien, Santucci and Joy, JJ., concur.
The facts concerning the attorney's alleged indictment, subsequent conviction, and disbarment are not established by this record. In any event, the defendant's claim that this situation warrants application of a per se rule of ineffective assistance of counsel is without merit (see, e.g., People v. Carney, 179 A.D.2d 818). Moreover, the record demonstrates that the attorney afforded the defendant meaningful representation (see, People v. Creech, 183 A.D.2d 777; People v. Badia, 159 A.D.2d 577, 578). We have considered the defendants' remaining contention and find it to be without merit.
When the record is considered in its entirety (see, People v. Baldi, 54 N.Y.2d 137, 147; People v. Keller, 194 A.D.2d 877), it is evident that meaningful representation was furnished at every stage of the proceedings. The mere fact that his assigned trial counsel was apparently disbarred several years after defendant's trial is of no moment, for there is no showing that the disbarment was based on counsel's failure to have met the substantive requirements for admission to practice in New York or that fear of discipline resulted in counsel providing defendant with a less than vigorous defense (see, People v. Carney, 179 A.D.2d 818, 818-819, lv denied 80 N.Y.2d 894; cf., United States v. Novak, 903 F.2d 883, 888-890; People v. Williams, 140 Misc.2d 136, 139-141). Mikoll, J.P., Crew III and Casey, JJ., concur.