Opinion
15003.
Decided and Entered: March 24, 2005.
Motion for reargument.
DECISION AND ORDER
Upon the papers filed in support of the motion, and no papers having been filed in opposition thereto, it is
ORDERED that the motion is granted, and the fifth paragraph of this Court's memorandum and order decided and entered January 27, 2005 is amended to read as follows:
We agree with defendant, however, that there was not legally sufficient evidence that the officer who he bit on the arm and leg suffered a "physical injury," an element of assault in the second degree (see Penal Law § 120.05; see also Penal Law § 10.00). Although the bite on the arm caused a break in the officer's skin, causing pain at the time of the incident — for which he was given pain medication when treated at the hospital — and tenderness for a couple days, the officer could not definitively recall taking the medication and the record indicates that approximately one hour after the incident, he told doctors that he was experiencing no pain. This evidence falls short of the objective level necessary to raise a question of fact for the jury to resolve (see People v. Thomas, 274 AD2d 761, 761-762, lv denied 95 NY2d 939; cf. People v. Hogencamp, 300 AD2d 734, 735). Accordingly, defendant's conviction of assault in the second degree must be reversed and the assault count of the indictment dismissed (see People v. Campbell, 72 NY2d 602). Defendant's remaining arguments are either rendered academic by our decision or otherwise meritless.
The decretal paragraph of said memorandum and order is amended to read as follows:
ORDERED that the judgment is modified, on the law, by reversing defendant's conviction of assault in the second degree under count one of the indictment; said count dismissed; and, as so modified, affirmed.
Mercure, J.P., Spain, Lahtinen and Kane, JJ., concur.