Opinion
May 5, 1986
Appeal from the Supreme Court, Queens County (Zelman, J.).
Judgment reversed, on the law and as a matter of discretion in the interest of justice, new trial ordered on the charge of robbery in the first degree, and the count of the indictment charging the defendant with assault in the third degree dismissed.
The most important issue in this case was the identity of the perpetrator, an issue on which conflicting testimony was elicited. Nevertheless, the trial court failed to give any charge whatsoever on identification. Although the defendant failed to take exception, we exercise our discretion and order a new trial on the charge of robbery in the first degree in the interest of justice (see, United States v Wade, 388 U.S. 218; People v Whalen, 59 N.Y.2d 273; People v Hollis, 106 A.D.2d 462; People v McKenzie, 97 A.D.2d 774; People v Daniels, 88 A.D.2d 392; 1 CJI [NY] 10.00 pp 575-605).
With respect to the assault charge, one of the People's witnesses testified that he was struck on the head with a gun. However, the blow did not cause him to lose consciousness, fall down, seek medical treatment, or suffer aftereffects. The People produced no further evidence concerning the injury. The bare proof that a victim has suffered a blow, without more, is insufficient to establish "substantial pain" within the meaning of Penal Law § 10.00 (9) and § 120.00 (see, People v Rojas, 61 N.Y.2d 726; People v Francis, 112 A.D.2d 167). Consequently, the assault count must be dismissed.
For the above reasons, a new trial is required on the charge of robbery in the first degree only. Mangano, J.P., Niehoff, Rubin and Kunzeman, JJ., concur.