Summary
In Roberts, the defendant "threw [the victim] upon a coffee table," causing a leg of the table to break (140 AD2d at 961).
Summary of this case from In the Mtr. of CarlosOpinion
May 27, 1988
Appeal from the Onondaga County Court, Cunningham, J.
Present — Denman, J.P., Green, Pine, Balio and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant was convicted of sexual abuse in the first degree, assault in the second degree and criminal mischief in the fourth degree arising out of a forcible attack committed in the complainant's apartment. The victim testified that, during the course of a struggle, defendant threw her upon a coffee table. A leg of the coffee table broke and the criminal mischief charge is predicated upon that damage. We conclude that the evidence was legally insufficient to support a conviction for criminal mischief in the fourth degree. The indictment charged a violation of subdivision (1) of Penal Law § 145.00, which requires that one possess a specific intent to damage the property of another (People v Summer, 64 A.D.2d 658). An intent to injure a person does not satisfy the mens rea requirement of intent to damage property simply because property is damaged in the course of the attack (People v Washington, 18 N.Y.2d 366). Since the evidence reveals only an intent directed toward the person, the People failed to prove that the defendant intended to damage the coffee table (People v Bryant, 85 A.D.2d 575; see also, Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 145.00, at 66). Accordingly, we modify the judgment to reverse the conviction for criminal mischief and vacate the sentence imposed thereon.
We find the evidence of bruises on the neck and arm of the victim, the brutal nature of the assault, and the victim's testimony of the pain suffered as a result of the attack to be sufficient proof that the victim suffered a "physical injury" (Penal Law § 10.00; People v Wainwright, 123 A.D.2d 894; People v Goico, 122 A.D.2d 576, lv denied 68 N.Y.2d 812; People v Fasano, 112 A.D.2d 791) sufficient to sustain a charge of assault in the second degree (Penal Law § 120.05).
Based upon our independent review of the record, we also conclude that the court's determination of guilt as to the sexual abuse and assault charges was not contrary to the evidence, and we affirm those convictions (see, People v Bleakley, 69 N.Y.2d 490, 495).