Opinion
1097 KA 18–00305
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Jason FREY, Defendant–Appellant.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trial of assault in the second degree ( Penal Law § 120.05[9] ) and five counts of endangering the welfare of a child (§ 260.10[1] ), defendant contends that the conviction of assault is not supported by legally sufficient evidence that the five-year-old victim sustained a physical injury within the meaning of Penal Law § 10.00(9). We reject that contention. Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), including the young age of the victim (see People v. Lashway, 112 A.D.3d 1222, 1225, 978 N.Y.S.2d 388 [3d Dept. 2013] ; see also Matter of Boua TT. v. Quamy UU., 66 A.D.3d 1165, 1166, 887 N.Y.S.2d 323 [3d Dept 2009], lv denied 14 N.Y.3d 702, 2010 WL 520887 [2010] ) and photographs of the resulting injuries, we conclude that the evidence is legally sufficient to establish that the victim suffered substantial pain as a result of what the victim's mother testified was a "full-force slap" by defendant to the victim's face (see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ; People v. Williamson, 21 A.D.3d 575, 575–576, 799 N.Y.S.2d 618 [3d Dept. 2005], lv denied 6 N.Y.3d 761, 810 N.Y.S.2d 429, 843 N.E.2d 1169 [2005] ; see also People v. Smith, 45 A.D.3d 1483, 1483, 845 N.Y.S.2d 655 [4th Dept. 2007], lv denied 10 N.Y.3d 771, 854 N.Y.S.2d 333, 883 N.E.2d 1268 [2008] ; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). County Court, sitting as the trier of fact, could have reasonably concluded that defendant's striking of the victim with an open hand in such a forceful manner was not a mere " ‘petty slap[ ]’ " ( Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] ), and that it caused "more than slight or trivial pain" ( Chiddick, 8 N.Y.3d at 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 ).
Furthermore, viewing the evidence in light of the elements of the crime of assault in the second degree 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 conclude that the verdict with respect to that crime is not against the weight of the evidence (see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Contrary to defendant's contention, the testimony of the victim's mother that the victim "constantly complained about pain" after the incident and that she gave him over-the-counter pain medication "for quite a few weeks" because "[h]e would cry that his face hurt" was not incredible as a matter of law, i.e., "it was not manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448 [4th Dept. 2008], lv denied 11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444 [2009] ; see People v. Johnson, 153 A.D.3d 1606, 1607, 62 N.Y.S.3d 658 [4th Dept. 2017], lv denied 30 N.Y.3d 1020, 70 N.Y.S.3d 452, 93 N.E.3d 1216 [2017] ).
Finally, we conclude that any error in the court's refusal to suppress defendant's statements is harmless beyond a reasonable doubt (see generally People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).