PEOPLE v. BUNTON (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of assault in the second degree under count three of the indictment and dismissing that count, and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of assault in the second degree (Penal Law § 120.05 [3]) and one count each of criminal trespass in the second degree (§ 140.15 [1]) and resisting arrest (§ 205.30), arising from an incident in which he caused injury to two police officers as he attempted to evade arrest for unlawfully entering a residence.

We agree with defendant that the evidence is legally insufficient to support the conviction with respect to the physical injury element of the crime of assault in the second degree as charged in count three of the indictment. “ ‘Physical injury’ means impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). Although pain is subjective, the Court of Appeals has cautioned that “the Legislature did not intend a wholly subjective criterion to govern” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980]). “Factors relevant to an assessment of substantial pain include the nature of the injury, viewed objectively, the victim's subjective description of the injury and his or her pain, whether the victim sought medical treatment, and the motive of the offender” (People v. Haynes, 104 A.D.3d 1142, 1143, 960 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014]; see People v. Chiddick, 8 N.Y.3d 445, 447-448, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007]). Here, the officer testified that he experienced “quite a bit of pain” to his “left upper thigh/groin area” after struggling with defendant when he resisted arrest and that his pain was a 6 or 7 out of 10 on the pain scale. There was only a vague description of the injury, and no medical records for the officer were introduced in evidence (cf. People v. Thompson, 179 A.D.3d 474, 474, 116 N.Y.S.3d 40 [1st Dept. 2020], lv denied 35 N.Y.3d 945, 124 N.Y.S.3d 283, 147 N.E.3d 553 [2020]). In addition, there was no testimony that the officer took any pain medication for the injury (cf. People v. Talbott, 158 A.D.3d 1053, 1054, 69 N.Y.S.3d 453 [4th Dept. 2018], lv denied 31 N.Y.3d 1088, 79 N.Y.S.3d 109, 103 N.E.3d 1256 [2018]), and the officer did not miss any work or testify that he was unable to perform any activities because of the pain. Viewing the evidence in the light most favorable to the People (see People v. Allen, 36 N.Y.3d 1033, 1034, 140 N.Y.S.3d 465, 164 N.E.3d 271 [2021]), we conclude that it is legally insufficient to establish that the officer sustained physical injury (see People v. Zalevsky, 82 A.D.3d 1136, 1137, 918 N.Y.S.2d 790 [2d Dept. 2011], lv denied 19 N.Y.3d 978, 950 N.Y.S.2d 361, 973 N.E.2d 771 [2012], reconsideration denied 19 N.Y.3d 1106, 955 N.Y.S.2d 562, 979 N.E.2d 823 [2012]; People v. Winchester, 14 A.D.3d 939, 941, 790 N.Y.S.2d 238 [3d Dept. 2005], lv denied 5 N.Y.3d 796, 801 N.Y.S.2d 817, 835 N.E.2d 677 [2005]; see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]), and we therefore modify the judgment by reversing that part convicting defendant of assault in the second degree under count three of the indictment and dismissing that count of the indictment.

Contrary to defendant's further contention, viewing the evidence in light of the elements of assault in the second degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we conclude that the verdict is not against the weight of the evidence with respect to the count of assault in the second degree under count two of the indictment (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

Finally, we reject defendant's contention that count four of the indictment, charging him with resisting arrest, was rendered duplicitous by the testimony at trial. The evidence establishes that defendant's multiple actions to avoid arrest constitute a single, uninterrupted crime rather than a series of distinct criminal acts (see People v. Alonzo, 16 N.Y.3d 267, 269-270, 920 N.Y.S.2d 302, 945 N.E.2d 495 [2011]; cf. People v. Bennett, 52 A.D.3d 1185, 1186, 859 N.Y.S.2d 836 [4th Dept. 2008], lv denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657 [2008]).