Opinion
CR-698-17
10-02-2018
The People of the State of New York, Plaintiff, v. Joshua M., Defendant.
Defendant is represented by Anne Weaver, Esq. The People are represented by Assistant District Attorney Ryan LeGrady.
Defendant is represented by Anne Weaver, Esq. The People are represented by Assistant District Attorney Ryan LeGrady.
Procedural History
Defendant was charged with assault in the third degree in violation of section 120.00(1) of the Penal Law of the State of New York (PL) in that it was alleged that he struck Richard W. multiple times to the head with a closed fist in the lobby of the Red Hook High School on December 19, 2017, allegedly causing multiple contusions and bruising.
Defendant is represented by Anne Weaver, Esq. The People are represented by Assistant District Attorney Ryan LeGrady.
A bench trial was held on May 30, 2018. There was a considerable, but unavoidable, delay in obtaining the trial transcript. Defendant submitted a post-trial brief on August 24, 2018. The People submitted a responding brief on August 28, 2018.
Analysis of the Facts and Law
Defendant Joshua M. was taunted and tormented on a regular basis by the putative victim, Richard W. By his own admission, Richard called Joshua "inbred," "a dirty pig," and "redneck." He also admitted to trying to trip Joshua on the school bus.
Several of Joshua's and Richard's classmates also testified. Brendan W. saw and heard Richard taunt Joshua on several occasion with the epithets "inbred" and "dirty pig." He also saw Richard shove Joshua on the school bus on at least one occasion.
Lauren W. saw Richard try and trip Joshua at least three times. She also heard Richard accuse Joshua of having an incestuous relationship with Joshua's sister, as well as calling Joshua a "dirty pig" on a daily basis. She encouraged Joshua to report Richard's vile conduct to the school authorities. Her sworn, uncontradicted testimony was that Joshua did complain to the school authorities several times, but to no avail.
Walter V. K. heard Richard call Joshua an "asshole," "dirty pig," and an "inbred."
Eugene P. testified that he observed Richard antagonize Joshua on an almost daily basis, and also heard Richard call Joshua "inbred." He observed Richard shove and trip Joshua on the school bus.
This unfortunate state of affairs came to a head when Joshua attacked Richard in the lobby of the high school and attempted to deliver what the People aptly described as "roundhouse" blows, as shown by the video in evidence. The incident was quickly terminated by a high school staff member who pushed Joshua outside of the building.
Richard claimed that he had a headache and that his knee hurt as a result of the incident. On cross-examination, Richard admitted that he flew to Guatemala four days after the incident, where he participated in physical activity such as hiking. He was cleared to do so by a neurologist. While in Guatemala, he did not use a wheelchair or crutches. He did not use a cane. Richard further admitted that, after the incident, he had no difficulty swallowing, no shortness of breath, no chest pain, no back pain, no joint pain, no muscle pain, no mental confusion, no dizziness, no loss of strength, no memory loss, no loss of consciousness, no numbness or tingling, and no blurring of vision or double vision.
No medical records were introduced into evidence, nor was there any testimony by a medical professional regarding any injury, serious or otherwise, to Richard as a result of the incident.
The elements of Assault 3d are as follows:
§ 120.00 Assault in the third degree. A person is guilty of assault in the third degree when:
1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the third degree is a class A misdemeanor.
Physical injury is defined as:
§ 10.00 Definitions of terms of general use in this chapter.
Except where different meanings are expressly specified in subsequent provisions of this chapter, the following terms have the following meanings:
* * *
9. "Physical injury" means impairment of physical condition or substantial pain. (Emphasis added.)
Although Richard testified to having some pain, the fact that he shortly after the incident flew to Guatemala and participated in activity that was, at times, vigorous, combined with the fact that there was no evidence of treatment by a physician that involved pain medication, shows conclusively that there was no impairment of his physical condition nor was the existence of substantial pain proven.
The Appellate Division's holding in People v. Windbush, 163 AD2d 591 (2d Dept., 1990) is particularly instructive:
" There is no indication that any of his [the victim's] activities were curtailed. . . The evidence was legally insufficient to establish that the complainant suffered an 'impairment of physical condition or substantial pain' so as to constitute 'physical injury' within the meaning of Penal Law § 10.00(9) (see, Matter of Philip A., 49 NY2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358; People v. Franklin, 149 AD2d 617, 540 N.Y.S.2d 288; People v. Jackson, 139 AD2d 766, 527 N.Y.S.2d 514; People v. Goins, 129 AD2d 733, 514 N.Y.S.2d 494) . . .the failure to establish physical injury requires reversal of the assault convictions and dismissal of those counts of the indictment (see, e.g., People v. Jackson, supra )."
Although the defendant did not seriously injure the complainant, it was not for want of trying. While not guilty of Assault 3d, he certainly made the attempt to seriously injure the complainant. That is clear from the attack as shown in the video in evidence. Therefore, it is the judgment of the Court that defendant is guilty of Attempted Assault in the 3d degree.
Counsel for both parties, as well as the defendant, are directed to appear before this Court on Wednesday, October 24, 2018 at 3:00 p.m. for further proceedings consistent with this opinion.
This decision also constitutes the Order of this Court. Dated: October 2, 2018 Red Hook, New York SO ORDERED. _________________________________________ JONAH TRIEBWASSER, Justice, Village of Red Hook