Opinion
11030021.
Decided August 16, 2011.
People of the State of New YorkHon. Michael Violante, Niagara County District Attorney Joseph Scalzo, of Counsel.
Defendant: Clifford McDowell Muscato, DiMillo Vona Angelo A. DiMillo, of Counsel.
Defendant, Clifford McDowell (McDowell) was charged with Assault in the second degree in violation of § 120.05 (2) of the Penal Law which required physical injury caused by a weapon. The People reduced the charge to the misdemeanor of Assault in the third degree to allow this Court to retain jurisdiction. McDowell moves to dismiss the pleading because it is fatally defective and factually insufficient as a matter of law. He posits it fails to set forth physical injury as contemplated by § 120 of the Penal Law.
STATUTE — PENAL LAW
§ 10.0(9) Physical Injury
"Physical injury means impairment of physical condition or substantial pain."
§ 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."
STANDARD OF REVIEW
An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15, (2) sets forth allegations which "provide reasonable cause to believe the defendant committed the offence charged" and (3) contains non-hearsay allegations which "establish, if true, every element of the offence charged and the defendant's commission thereof." CPL § 100.40(1); People v. Alejandro, 70 NY2d 133 (1987). This third requirement is also known as the " prima facie case" requirement. The Alejandro Court further held that failure to comply with the prima facie case requirement is a jurisdictional defect. This Court notes that the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson, 92 NY2d 677, (1999). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354 at p. 360 (2000).
FACTS FOUND IN COMPLAINT AND SUPPORTING DEPOSITION
Antonio Vasser (Vasser) went to see his brother-in-law, the defendant, Clifford McDowell (McDowell) at his place of business in the Town of Lockport. An altercation ensued with McDowell punching Vasser in the face. Vasser then retreated to his car where McDowell hit him in the face with a stick. Vasser called the police and EMTs administered first aid to the cut on his face. Vasser did not seek further medical attention. The complainant, Niagara County Sheriff Deputy Brett Thompson, observed a laceration to the left cheek area of Vasser's face.
DISCUSSION
The term "physical injury" means "impairment of physical condition or substantial pain". [Penal Law § 10.00(9). "Impairment of physical condition" does not require a victim's incapacitation. People v. Tejeda, 78 NY2d 936, 573 N.Y.S.2d 633, 578 N.E.2d 431 (1991). "Substantial pain" need not "be severe or intense." People v. Chiddick, 8 NY3d, 834 NY.2d 710, 866 N.E.2d 1039 (2007).
In defining the level of "physical injury" that would be necessary for an assault, the drafters intended to exclude such things as "petty slaps, shoves, kicks, and the like." Staff Notes of the Commission on Revision of the Penal Law.
The Appellate Courts are all over the place in what establishes physical injury. For example, a bullet wound is not per se a physical injury, [ People vs. Frances, 112 AD2d 167 (2d Dept. 1985)] but being hit with a stick causing bruises and abrasions to face is a physical injury [ People v. Young, 236 AD2d 808 (4th Dept. 1997)].
Physical injury may not be established where the victim suffers only small cuts and abrasions that do not require stitches, Matter of Shawnell UU, 240 AD2d 947, 659 N.Y.S.2d 531 (3d Dep't 1997); People v. Velasquez, 202 AD2d 1037, 609 N.Y.S.2d 717 (4th Dep't 1994); People v. Williams, 101 AD2d 870, 476 N.Y.S.2d 19 (2d Dep't 1984), where the victim does not provide evidence of duration of pain nor other objective indicia of substantial pain, Matter of Scott QQ, 187 AD2d 867, 589 N.Y.S.2d 712 (3d Dep't 1992); People v. Cheeks, 161 AD2d 657, 555 N.Y.S.2d 433 (2d Dep't 1990); People v. Rodriguez, 158 AD2d 376, 551 N.Y.S.2d 501 (1st Dep't 1990); People v. Rankin, 155 AD2d 977, 547 N.Y.S.2d 783 (4th Dep't 1989) or where the victim testifies only to minimal soreness and swelling or bruising, Matter of Robert C., 185 AD2d 845 586 N.Y.S.2d 992 (2d Dep't 1992); People v. Powell, 153 AD2d 54, 549 N.Y.S.2d 276 (4th Dep't 1989); People v. Oquendo, 134 AD2d 203, 521 N.Y.S.2d 5 (1st Dep't 1987).
However, more substantial bruising, swelling, and lacerations have been sufficient. People v. Terrero , 31 AD3d 672 , 818 N.Y.S.2d 288 (2d Dep't 2006), leave to appeal denied, 7 NY3d 852, 823 N.Y.S.2d 781, 857 N.E.2d 76 (2006); People v. Curkendall, 12 AD3d 710, 783 N.Y.S.2d 707 (3d Dep't 2004); People v. Amin, 294 AD2d 863, 742 N.Y.S.2d 746 (4th Dep't 2002); People v. Guzman, 260 AD2d 188, 689 N.Y.S.2d 34 (1st Dep't 1999). Courts have been more likely to find physical injury where the victim was rendered unconscious, People v. Hicks , 35 AD3d 1027 , 825 N.Y.S.2d 836 (3d Dep't 2006); People v. Cannon, 300 AD2d 407, 751 N.Y.S.2d 529 (2d Dep't 2002); People v. Wooden, 275 AD2d 935, 713 N.Y.S.2d 415 (4th Dep't 2000); People v.
Ganz, 224 AD2d 190, 637 N.Y.S.2d 136 (1st Dep't 1996), sustained fractures, People v. Dennee, 295 AD2d 1012, 743 N.Y.S.2d 798 (4th Dep't 2002); People v. Luck, 294 AD2d 618, 742 N.Y.S.2d 678 (3d Dep't 2002), or was left with scars. People v. Mack, 301 AD2d 863, 755 N.Y.S.2d 437 (3d Dep't 2003); People v. Rivers, 281 AD2d 342, 722 N.Y.S.2d 520 (1st Dep't 2001); People v. Carter, 280 AD2d 977, 720 N.Y.S.2d 679 (4th Dep't 2001).
Whether a victim seeks medical attention for injuries received in an alleged assault is also a factor that is considered in determining if the victim has suffered a physical injury sufficient to charge assault, In re Manny P., 33 AD3d 330, 822 N.Y.S.2d 50 (1st Dep't 2006); People v. Terrero , 31 AD3d 672 , 818 N.Y.S.2d 288 (2d Dep't 2006), leave to appeal denied, 7 NY3d 852, 823 N.Y.S.2d 781, 857 N.E.2d 76 (2006); People v. Chiddick , 8 NY3d 445 , 834 N.Y.S.2d 710, 866 N.E.2d 1039 (2007); People v. Owens, 256 AD2d 1220, 685 N.Y.S.2d 145 (4th Dep't 1998) particularly whether the victim required pain killers. In re Manny P. 33 AD3d 330, 822 N.Y.S.2d 50 (1st Dep't 2006); People v. Bowen, 17 AD3d 1054, 794 N.Y.S.2d 203 (4th Dep't 2005); People v. Curkendall , 12 AD3d 710 , 783 N.Y.S.2d 707 (3d Dep't 2004); People v. Morales, 245 AD2d 467, 666 N.Y.S.2d 660 (2d Dep't 1997) or other medication, People v. Medor, 39 AD3d 362, 833 N.Y.S.2d 100 (1st Dep't 2007), leave to appeal denied, 9 NY3d 867, 840 N.Y.S.2d 897, 872 N.E.2d 1203 (2007); In re Winston W., 29 AD3d 473, 815 N.Y.S.2d 543 (1st Dep't 2006) (antibiotics for bite wounds as well as medicine for his headache); People v. Bernier, 279 AD2d 701, 719 N.Y.S.2d 186 (3d Dep't 2001) (medicine for headache).
In addition, the extent to which a victim is able to resume normal activities subsequent to an attack is considered in deciding whether the victim has sustained a physical injury, People v. Windbush, 163 AD2d 591, 558 N.Y.S.2d 970 (2d Dep't 1990), particularly whether a victim was able to return to work, People v. Barnes, 35 AD3d 170, 826 N.Y.S.2d 28 (1st Dep't 2006), leave to appeal denied, 8 NY3d 878, 832 N.Y.S.2d 490, 864 N.E.2d 620 (2007) (unable to return to work for nearly a year); People v. Mack, 301 AD2d 863, 755 N.Y.S.2d 437 (3d Dep't 2003) (missed two and a half weeks of work); People v. Carter, 280 AD2d 977, 720 N.Y.S.2d 679 (4th Dep't 2001) (out of work for 20 days); People v. Wooden, 275 AD2d 935, 713 N.Y.S.2d 415 (4th Dep't 2000) (remained out of work for one week); People v Callaghan, 220 AD2d 609, 633 N.Y.S.2d 46 (2d Dep't 1995) (absent from work for a week). However, physical injury has been established even though the victim did not seek medical treatment. People v. Gerecke , 34 AD3d 1260 , 823 N.Y.S.2d 797 (4th Dep't 2006), leave to appeal denied, 7 NY3d 925, 827 N.Y.S.2d 694, 860 N.E.2d 996 (2006) and leave to appeal denied, 7 NY3d 927, 827 N.Y.S.2d 696, 860 N.E.2d 998 (2006); People v. Brodus, 307 AD2d 643, 763 N.Y.S.2d 363 (3d Dep't 2003), or take time off from work, People v. Gerecke , 34 AD3d 1260 , 823 N.Y.S.2d 797 (4th Dep't 2006), and leave to appeal denied, 7 NY3d 925, 827 N.Y.S.2d 694, 860 N.E.2d 996 (2006)
DECISION
This Court is guided by the Court of Appeals in People vs. Chiddick, 8 NY3d 445 (2007). There the Court points out "substantial pain" was established and therefore physical injury was caused by the defendant. The Court stated at 447-448:
"Of course "substantial pain" cannot be defined precisely, but it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial. Beyond these generalizations, there are several factual aspects of a case that can be examined to decide whether enough pain was shown to support a finding of substantiality.
Perhaps most important is the injury defendant inflicted, viewed objectively. Here, defendant broke Gentles's fingernail and caused him to bleed — an experience that would normally be expected to bring with it more than a little pain. Also important is the victim's subjective description of what he felt; sometimes an objective account of the injury, unaccompanied by testimony about the degree of pain the victim experienced, will be enough ( People v Rojas, 61 NY2d 726 [1984]), but sometimes it will not ( Matter of Philip A., 49 NY2d 198 [1980]). Here, Gentles's testimony confirms that the pain was not trivial: he said it was in between "[a] little" and "a lot."
It is also relevant that Gentles sought medical treatment for the wound defendant inflicted — an indication that his pain was significant. And finally, the legislative history of the Penal Law shows that the motive of the offender may be relevant"
Accordingly, this Court holds that when the accusatory instrument fails to provide any factual allegations on which the Court could identify as supporting, the aspects employed in Chiddick to establish the presence of substantial pain, that element has not been sufficiently pled.
Therefore, this Court finds that this accusatory instrument is jurisdictionally defective because it fails to properly allege the element (substantial pain) of physical injury. Accordingly, the defendant's motion to dismiss the charge of Assault in the third degree is granted. This ruling does not foreclose the People's ability to file a timely superseding information that sufficiently alleges the physical injury element.