Opinion
2014–04607 Ind.No. 4852/13
01-17-2018
The PEOPLE, etc., respondent, v. Franto CHERY, appellant.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and, Anthea H. Bruffee, and John C. Burzynski and Jeremy Bressman [Sullivan & Cromwell, LLP], of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and, Anthea H. Bruffee, and John C. Burzynski and Jeremy Bressman [Sullivan & Cromwell, LLP], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, COLLEEN D. DUFFY, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond Guzman, J.), rendered April 23, 2014, convicting him of attempted robbery in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to support the finding that the complainant suffered "physical injury," an element of the crimes of attempted robbery in the second degree ( Penal Law §§ 110.00, 160.10[2][a] ) and assault in the third degree ( Penal Law § 120.00[1] ). Physical injury is defined as either the impairment of physical condition or substantial pain (see Penal Law § 10.00[9] ). "[I]mpairment of physical condition" does not require a victim's incapacitation ( People v. Tejeda, 78 N.Y.2d 936, 938, 573 N.Y.S.2d 633, 578 N.E.2d 431 [internal quotation marks omitted] ). " ‘[S]ubstantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain," although "[p]ain need not, however, be severe or intense to be substantial" ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ). Whether substantial pain has been proven is generally a question for the trier of fact (see People v. Rojas, 61 N.Y.2d 726, 727, 472 N.Y.S.2d 615, 460 N.E.2d 1100 ; Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 ; People v. Monserrate, 90 A.D.3d 785, 787, 934 N.Y.S.2d 485 ).
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the element of physical injury (see People v. Stanback, 149 A.D.3d 877, 878, 51 N.Y.S.3d 201 ; People v. Carson, 126 A.D.3d 996, 997, 6 N.Y.S.3d 269 ; People v. Rose, 120 A.D.3d 593, 594, 990 N.Y.S.2d 832 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
MASTRO, J.P., HALL, SGROI and DUFFY, JJ., concur.