Opinion
November 15, 1989
Appeal from the Onondaga County Court, Auser, J.
Present — Dillon, P.J., Callahan, Green, Pine and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that the evidence is legally sufficient to establish defendant's guilt of robbery in the second degree pursuant to Penal Law § 160.10 (1). We find, however, that the People did not meet their burden of proving defendant guilty of assault in the second degree pursuant to Penal Law § 120.05 (6) and robbery in the second degree pursuant to Penal Law § 160.10 (2) (a). Consequently, those convictions must be reversed and those counts of the indictment dismissed.
The evidence adduced at trial was legally insufficient to establish "physical injury" as defined in Penal Law § 10.00 (9). The victim testified that when defendant pushed him to the ground, his face bled and "it hurt a little bit". He did not, however, testify regarding the extent of the pain suffered from his injuries, nor did he testify that the pain was substantial (see, People v Greene, 70 N.Y.2d 860; People v Jackson, 139 A.D.2d 766). Further, the record lacks evidentiary support for a conclusion that the physical condition of the victim was impaired because of the injuries sustained in the incident (see, People v Wainwright, 123 A.D.2d 894).
We have examined defendant's remaining contentions and find them to be either unpreserved for our review or without merit.