PEOPLE v. DOE (2023)

Judgment, Supreme Court, New York County (Michele S. Rodney, J.), rendered November 25, 2019, as amended December 17, 2019, convicting defendant, after a jury trial, of attempted robbery in the second degree, robbery in the third degree and grand larceny in the fourth degree (six counts), and sentencing him to a term of five years on the attempted robbery conviction, consecutive to an aggregate term of two to six years on the remaining convictions, unanimously affirmed.

Defendant's challenges to the sufficiency and weight of the evidence supporting the physical injury element of attempted second-degree robbery are unavailing (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  To establish physical injury, the People were required to prove that the victim's injury went beyond mere “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358 [1980]).  Relatively minor injuries causing moderate, but “more than slight or trivial pain” may suffice (People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007]), as may injuries that did not require any medical treatment (see People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994]).

Here the evidence supporting an inference that defendant caused substantial pain to the victim far exceeded the required threshold.  Defendant attempted to forcibly pull the victim's backpack from her back as she was going through a subway turnstile.  As he struggled with her, he repeatedly banged her against the turnstile bars and supports.  The victim testified that after the attempted robbery she felt “a radiating, throbbing” pain, mostly in her back and shoulders, which she rated as “9 out of 10,” that she had bruises, cuts, and redness on her back, that she had “substantial pain” in her left arm, that she had trouble sleeping for about a month, and that she took pain relievers for two weeks.  She also testified that it took at least a month for the bruise on her shoulder to fade, and two to three months for “each painful area” to get better.  In addition, the evidence included photographs of the victim's injuries, and the testimony and notes of a chiropractor whom the victim saw the day after the incident.  Accordingly, the jury could have reasonably drawn an inference of substantial pain (see e. g. People v. Spinac, 185 A.D.3d 498, 499, 127 N.Y.S.3d 471 [1st Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 399, 152 N.E.3d 1201 [2020]).

Defendant's principal argument to the contrary is an assertion that the victim's pain could have been the result of a condition that had been treated by the chiropractor earlier that year.  The claim that this condition suddenly and coincidentally reoccurred at the time of the crime is speculative, implausible, and contradicted by the evidence, which shows that the prior condition had been different and much less severe, and that it had been treated with complete success three months before this incident.

Moreover, on these facts, no reasonable view of the evidence, viewed most favorably to defendant, supports the conclusion that he did not cause physical injury.  Accordingly, the court correctly declined to charge the lesser included offense of attempted robbery in the third degree (see e. g. People v. Gonzalez, 60 A.D.3d 447, 448, 874 N.Y.S.2d 118 [1st Dept. 2009], lv denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077 [2009]).

We perceive no basis for reducing the sentence.