Opinion
2011-12-1
The PEOPLE of the State of New York, Respondent, v. Eriverto MARTINEZ, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Fitzpatrick, Cella, Harper & Scinto, New York (Dara M. Kurlancheek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Margaret E. Knight of counsel), and Fitzpatrick, Cella, Harper & Scinto, New York (Dara M. Kurlancheek of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Britta Gilmore of counsel), for respondent.
TOM, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, ROMÁN, JJ.
Judgment, Supreme Court, New York County (John Cataldo, J.), rendered November 16, 2006, as amended January 25, 2007, convicting defendant, after a jury trial, of assault in the second degree (two counts), criminal possession of a controlled substance in the seventh degree and harassment in the second degree, and sentencing him, as a second violent felony offender, to an aggregate term of five years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's credibility determinations, including its assessment of the injured officer's characterization of his injury ( see People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ).
Defendant challenges the sufficiency and weight of the evidence supporting the physical injury element of the assault charges ( see Penal Law § 10.00[9] ). To establish that element, the People were only required to prove that the victim's injuries were more than mere “petty slaps, shoves, kicks and the like” ( Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980] ). The statutory threshold of “substantial pain” may be satisfied by relatively minor injuries causing “more than slight or trivial pain” ( see People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ).
The evidence showed that defendant, who was attempting to avoid being arrested, punched the arresting officer in the shoulder. Defendant had a rock in his fist at the time of the punch. This caused the arresting officer to experience an immediate sharp pain, followed by numbing and a tingling sensation. That evening the officer went to a hospital, where he was prescribed a painkiller and advised to treat the area with ice. The hospital records also show that the officer reported significant pain. For the next three to five days, the officer suffered extensive swelling and bruising, as well as pain and soreness. Accordingly, the jury's verdict was amply supported by the evidence.