Opinion
July 8, 1970
Appeal from a judgment of conviction of the County Court, Albany County, entered upon a verdict convicting appellant of the crimes of assault in the third and second degree (Penal Law, § 120.00, 120.05 Penal). The third degree assault charge arose out of an altercation on February 10, 1969 between appellant and one John Casazza, Jr., the proprietor of a parking lot at the corner of Arch and Grand Streets in the City of Albany and the second degree assault conviction was predicated upon a subsequent scuffle between appellant and an Albany police officer, Patsy Deso, who had responded to a call about the fight between Casazza and appellant. Appellant first asserts that the prosecution failed to establish that officer Deso suffered either an "impairment of his physical condition or substantial pain" (Penal Law, § 10.00, subd. 9) and thus there was no "physical injury" to sustain a conviction for assault in the second degree (Penal Law, § 120.05, subd. 3). While there is no direct testimony by officer Deso as to his experiencing substantial pain the jury could clearly infer from his testimony that appellant, a six-foot man weighing somewhere between 210 and 215 pounds, struck him with his closed first in the right eye knocking him to the ground, that he had in fact experienced substantial pain. Secondly, People v. Mussenden ( 308 N.Y. 558) and section 445 of the Code of Criminal Procedure require only a charge as to any lesser degree or included crime, whereas harassment, which allegedly should have been charged and was not, is merely a violation and not a crime (Penal Law, § 240.25, 10.00 Penal, subd. 6). A charge as to harassment was thus not mandated, and we find no reversible error in the trial court's refusal to make it. Thirdly, it is not sufficient to merely make assertions of a discriminatory process as to the selection of criminal jury panels without proof of any facts to support such an assertion ( People v. Pulliam, 28 A.D.2d 786). Fourthly, the two counts of the indictment involve offenses which are undeniably similar, and which happened at very nearly the same time and thus were not improperly joined (Code Crim. Pro., § 279; People v. Colligan, 9 N.Y.2d 900; People v. Gibbs, 36 Misc.2d 768). Appellant also raises several other issues but we find no merit in them and, accordingly, the judgment of conviction must be affirmed. Judgment affirmed. Reynolds, Staley, Jr., and Greenblott, JJ., concur in memorandum by Reynolds, J. Herlihy, P.J., and Sweeney, J., dissent and vote to modify in a memorandum by Herlihy, P.J.
I disagree with the conclusion of the majority that the record contains evidence to support the finding that the police officer suffered "substantial pain" beyond a reasonable doubt. It should be noted that there is no contention that the officer suffered an "impairment of his physical condition". The circumstantial evidence of a blow sufficient to knock one to the ground is clearly sufficient to support the inference of some pain, but the requirement under subdivision 9 of section 10.00 Penal of the Penal Law is "substantial" pain. The officer's description of the entire incident does not support any clear inference that the pain was substantial (cf. People v. Blake, 5 N.Y.2d 118) and he did not consider himself at all disabled from carrying out his duties as a result of the blow. While police officers must be protected in carrying out their duty, it is clear that the crime of assault in the second degree for causing physical injury to a police officer (Penal Law § 120.05, subd. 3) contemplates something substantially more than a showing of physical contact. (See former Penal Law, § 242, subd. 5.) While the circumstances in some other case might be sufficient to clearly infer that the police officer suffered substantial pain, the circumstances described in the present record render any consideration of "substantial" merely speculative. The judgment should be modified so as to vacate the conviction for second degree assault and convict defendant of harassment in violation of section 240.25 Penal of the Penal Law.