The People, etc., respondent, v. Najib Rahman, appellant. (2011)

Argued—February 15, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Silber, J.), rendered May 27, 2009, convicting him of attempted robbery in the second degree and attempted grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's conviction of attempted robbery in the second degree required proof of physical injury (see Penal Law §§ 110.00, 160.10[2];  see also People v. Miller, 87 N.Y.2d 211).   Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ).   Although “substantial pain” must be “more than slight or trivial pain” it need not be “severe or intense to be substantial” (People v. Chiddick, 8 NY3d 445, 447).  “Impairment of physical condition,” moreover, does not require “a victim's incapacitation” (People v. Tejeda, 78 N.Y.2d 936, 938).

Contrary to the defendant's contention, the evidence was legally sufficient to establish that the complainant suffered physical injury during the course of the attempted robbery (see People v. Chiddick, 8 NY3d 445, 447;  People v. Guidice, 83 N.Y.2d 630, 636;  People v. Greene, 70 N.Y.2d 860, 862–863;  People v. Valencia, 50 AD3d 1163, 1164;  cf.  People v. Cheeks, 161 A.D.2d 657, 657).   Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410;  People v. Bleakley, 69 N.Y.2d 490, 495).   Upon reviewing the record here, we are satisfied that the verdict of guilt of attempted robbery in the second degree was not against the weight of the evidence (see People v. Romero, 7 NY3d 633;  People v. Andrews, 236 A.D.2d 735, 735–736;  cf.  People v. Bumbury, 263 A.D.2d 512, 513).

The testimony established that the defendant grabbed the complainant around the throat with both of his hands and strangled her, holding her back by force.   The complainant testified that she was unable to breathe for about a minute, and a struggle ensued during which the complainant made numerous attempts to get the defendant's hands off her neck.   She lost both shoes during the course of the struggle, ripped her jeans, and suffered a “large bruise” on her hip.   The bruise on her hip took about a month to heal.   About eight hours after the attack, the complainant first started experiencing “intensive pain” in her neck which lasted for about a week and one-half.   During this time she was unable to sleep, drive, play with her son, or work as a sculptor.   The complainant sought treatment from her homeopath and made the first of numerous visits to her acupuncturist a week later for the purpose of managing the pain.   Thus, the evidence established that the complainant suffered “physical injury” as a result of her confrontation with the defendant (Penal Law § 10.00[9] ).

ANGIOLILLO, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court