People v. Oquendo

19 Citing cases

  1. People v. Rodriguez

    158 A.D.2d 376 (N.Y. App. Div. 1990)   Cited 9 times

    With respect to physical injury, this court has stated, "[T]he legal authority is clear that 'there is an objective level * * * below which the question is one of law'". (People v Oquendo, 134 A.D.2d 203, lv denied 70 N.Y.2d 959, quoting Matter of Philip A., 49 N.Y.2d 198, 200.)

  2. People v. A.S., 2010 NY Slip Op 20171 (N.Y. Crim. Ct. 5/11/2010)

    2010 N.Y. Slip Op. 20171 (N.Y. Crim. Ct. 2010)

    While the question of whether an alleged impairment of physical condition or pain is sufficient to establish physical injury is one for the trier of fact, "there is an objective level . . . below which the question is one of law, and the charge should be dismissed." (Matter of Philip A., 49 NY2d 198, 200 [1980]; seePeople v. Oquendo, 134 AD2d 203 [1st Dept. 1987], lv. denied, 70 NY2d 959 [1988] (reviewing cases where injuries did not constitute "substantial pain").) For instance," petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives'" are not acts that constitute assault.

  3. Boles v. Senkowski

    878 F. Supp. 415 (N.D.N.Y. 1995)   Cited 13 times

    94 A.D.2d 897, 897-98, 463 N.Y.S.2d 711, 712 (3d Dep't 1983) (issue of physical injury properly was submitted to the jury where the complainant testified that the defendant punched him "hard" causing numbness, bleeding, a cut and soreness for several days although he did not seek medical attention or miss work due to injury); People v. Almonte, 102 Misc.2d 950, 951-53, 424 N.Y.S.2d 868, 869-70 (Sup.Ct.N.Y.Co. 1980) (bleeding laceration requiring emergency outpatient treatment constitutes an impairment of physical condition even without testimony regarding any impairment in activity or function); cf People v. Carney, 179 A.D.2d 818, 818, 579 N.Y.S.2d 157, 158 (2d Dep't) (insufficient evidence of physical injury where the complaining witness did not seek medical attention, did not testify about the nature or extent of her pain and did not testify about the extent to which any of her daily activities were curtailed), appeal denied; 80 N.Y.2d 894, 600 N.E.2d 652, 587 N.Y.S.2d 925 (1992); People v. Oquendo. 134 A.D.2d 203, 204, 521 N.Y.S.2d 5, 6 (1st Dep't 1987) (insufficient evidence of physical injury where the injury suffered "consisted entirely of pain experienced at the time of commission of the crime, the severity of which is undetermined, and some bruising, and there is no indication of any aftereffects"), appeal denied, 70 N.Y.2d 959, 520 N.E.2d 560, 525 N.Y.S.2d 842 (1988); People v. Contreras, 108 A.D.2d 627, 628, 485 N.Y.S.2d 261, 263 (1st Dep't 1985) (testimony about pain, "which is purely subjective and only one factor to be considered," was insufficient to establish physical injury). Based on the evidence presented at trial, a rational jury could have determined that Chandler suffered physical injury.

  4. People v. Jones

    106 A.D.3d 1106 (N.Y. App. Div. 2013)

    Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to those crimes was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1;People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902). Contrary to the defendant's contention, the evidence was sufficient to establish the element of displaying what appeared to be a handgun during the course of the crime ( see People v. Barrett, 247 A.D.2d 626, 626–627, 669 N.Y.S.2d 244;People v. Moore, 134 A.D.2d 530, 531, 521 N.Y.S.2d 297), and to establish that, with respect to count two of the indictment, the complainant sustained a “[p]hysical injury” within the meaning of Penal Law § 10.00(9) ( see People v. Louis, 99 A.D.3d 725, 726, 951 N.Y.S.2d 563;People v. Rahman, 84 A.D.3d 1119, 1120, 923 N.Y.S.2d 186;People v. Brown, 243 A.D.2d 749, 749–750, 662 N.Y.S.2d 934;People v. Miller, 146 A.D.2d 809, 810, 537 N.Y.S.2d 287;cf. People v. Oquendo, 134 A.D.2d 203, 203–204, 521 N.Y.S.2d 5). ANGIOLILLO, J.P., HALL, ROMAN and HINDS–RADIX, JJ., concur.

  5. People v. Messam

    101 A.D.3d 407 (N.Y. App. Div. 2012)   Cited 9 times
    Holding that victim who had pain in her jaw two years after the assault had suffered protracted impairment of health

    The conviction of assault in the second degree required the People to prove beyond a reasonable doubt that the victim suffered a “serious physical injury” (Penal Law § 120.05[1] ), a term that the Penal Law defines as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10] ). Although the question of whether there was serious physical injury is generally a factual issue for the jury, “there is an objective level ... below which the question is one of law” ( see People v. Oquendo, 134 A.D.2d 203, 521 N.Y.S.2d 5 [1987],lv. denied,70 N.Y.2d 959, 525 N.Y.S.2d 842, 520 N.E.2d 560 [1988] [citation omitted] [addressing “impairment of physical condition or substantial pain” under the analogous Penal Law 10.00(9) ] ).

  6. People v. West

    271 A.D.2d 806 (N.Y. App. Div. 2000)   Cited 21 times

    The foregoing evidence was legally sufficient to satisfy the People's burden of demonstrating that, using a dangerous instrument, i.e., a pair of scissors ( see, Penal Law § 10.00; People v. Carter, 53 N.Y.2d 113, 116; People v. Williams, 118 A.D.2d 609, lv denied 67 N.Y.2d 953), defendant intentionally caused physical injury to the victim consisting of physical impairment to her finger ( see, Penal Law § 10.00; § 120 05 [9]. People v. Guidice, 83 N.Y.2d 630, 636; People v. Tejeda, 78 N.Y.2d 936; People v. Santiago, 221 A.D.2d 259, lv denied 87 N.Y.2d 925; People v. Chesebro, 94 A.D.2d 897; cf., People v. Jimenez, 55 N.Y.2d 895, 896; Matter of Shawnell UU., 240 A.D.2d 947; People v. Oquendo, 134 A.D.2d 203, lv denied 70 N.Y.2d 959). Further, the victim's testimony concerning the November 1997 incident, if credited, established that defendant repeatedly punched her in the head, placed his hands around her neck and choked her, dragged her by the hair and threatened to kill her.

  7. People v. Blacknall

    185 A.D.2d 108 (N.Y. App. Div. 1992)   Cited 4 times

    In Matter of Philip A. ( 49 N.Y.2d 198, 200), the Court held that where the victim testifies merely that he "was hit, that it caused him pain, the degree of which was not spelled out", the evidence was insufficient to establish substantial pain. That is the case here as well, where there was absolutely no indication respecting the degree of pain suffered by the complainant or of any residual impairment or need for medical attention (see, People v. Brown, 145 A.D.2d 301, lv denied 73 N.Y.2d 1012; People v. Oquendo, 134 A.D.2d 203, lv denied 70 N.Y.2d 959).

  8. People v. Blacknall

    185 A.D.2d 101 (N.Y. App. Div. 1992)   Cited 1 times

    In Matter of Philip A. ( 49 N.Y.2d 198, 200), the Court held that where the victim testifies merely that he "was hit, that it caused him pain, the degree of which was not spelled out", the evidence was insufficient to establish substantial pain. That is the case here as well, where there was absolutely no indication respecting the degree of pain suffered by the complainant or of any residual impairment or need for medical attention (see, People v. Brown, 145 A.D.2d 301, lv denied 73 N.Y.2d 1012; People v. Oquendo, 134 A.D.2d 203, lv denied 70 N.Y.2d 959).

  9. People v. Pope

    174 A.D.2d 319 (N.Y. App. Div. 1991)   Cited 28 times
    Throbbing pain in pinky finger for about a week

    Penal Law § 10.00 (9) defines physical injury as "impairment of physical condition or substantial pain." We stated, in People v Oquendo ( 134 A.D.2d 203 [1st Dept 1987], lv denied 70 N.Y.2d 959), that, although the degree of impairment of physical condition or substantial pain needed to establish physical injury, as defined in Penal Law § 10.00 (9) "is generally to be decided by the trier of fact, the legal authority is clear that 'there is an objective level * * * below which the question is one of law' (Matter of Philip A., 49 N.Y.2d 198, 200)". Repeatedly, it has been held that, as a matter of law, "petty slaps, shoves and kicks do not amount to 'physical injury' under the statute [Penal Law § 10.00 (9)]" (People v Chesebro, 94 A.D.2d 897; Matter of Philip A., 49 N.Y.2d 198, 200, supra).

  10. People v. McBroom

    160 A.D.2d 620 (N.Y. App. Div. 1990)   Cited 1 times

    The assault was not comprised of mere slaps, shoves or kicks (cf., Matter of Philip A., 49 N.Y.2d 198, 200) and was manifested by objective indicia of injury (People v. Rojas, 61 N.Y.2d 726, 727-728), which created an issue for jury determination. (People v. Oquendo, 134 A.D.2d 203.) Nor was the legal sufficiency of the element of physical injury defeated by the People's failure to introduce hospital records.