PEOPLE v. BAEZ (2004)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered July 8, 2003, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reducing the defendant's conviction of assault in the second degree to attempted assault in the second degree and vacating the sentence imposed thereon;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing on that count.

The defendant contends that the evidence of “physical injury,” an element of the crime of assault in the second degree, was legally insufficient.   Contrary to the People's contention, this issue is preserved for appellate review (see CPL 470.05[2];  People v. Gray, 86 N.Y.2d 10, 19-21, 629 N.Y.S.2d 173, 652 N.E.2d 919;  People v. Soto, 8 A.D.3d 683, 684, 779 N.Y.S.2d 251, lv. denied 3 N.Y.3d 712, 785 N.Y.S.2d 40, 818 N.E.2d 682).   Moreover, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we agree with the defendant that it was legally insufficient to establish that the complainant suffered either “substantial pain” or “impairment of [his] physical condition” as a result of the injury to his shoulder (see Penal Law § 120.05[2];  10.00 [9];  Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 400 N.E.2d 358;  Matter of Robert C., 185 A.D.2d 845, 586 N.Y.S.2d 992;  People v. Bruce, 162 A.D.2d 604, 605, 556 N.Y.S.2d 782;  People v. Holden, 148 A.D.2d 635, 539 N.Y.S.2d 95).   The complainant cleaned and bandaged the injury himself and testified to only limited restrictions.   No expert testimony was proffered as to either the extent of the injury or the duration of the limitation.

However, the evidence was legally sufficient to establish the defendant's guilt of the lesser-included offense of attempted assault in the second degree (see CPL 470.15[2][a];  People v. Lobo, 6 A.D.3d 550, 774 N.Y.S.2d 402;  People v. Harris, 305 A.D.2d 614, 615, 759 N.Y.S.2d 360), which does not require evidence of physical injury (see People v. Koufomichalis, 2 A.D.3d 987, 988, 768 N.Y.S.2d 246).   Furthermore, upon the exercise of our factual review power, we are satisfied that the verdict of guilt on the criminal possession of a weapon in the fourth degree count (see Penal Law § 265.01) was not against the weight of the evidence (see CPL 470.15[5] ).