Opinion
November 29, 1982
Appeal by defendant from a judgment of the Supreme Court, Queens County (Linakis, J.), rendered January 14, 1982, convicting him of rape in the first degree, sodomy in the first degree, burglary in the first degree and resisting arrest, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reducing the conviction of burglary in the first degree to one of burglary in the third degree, and by vacating the sentence imposed thereon. As so modified, judgment affirmed and case remitted to the Supreme Court, Queens County, for resentencing. Defendant's conviction for burglary in the first degree required proof of physical injury (Penal Law, § 140.30, subd 2) which is defined as "impairment of physical condition or substantial pain" (Penal Law, § 10.00, subd 9). While the question of whether the element of "substantial pain" has been established is generally one for the trier of fact, who may consider, inter alia, the subjective feeling of the complaining witness, "there is an objective level * * * below which the question is one of law" ( Matter of Philip A., 49 N.Y.2d 198, 200). At trial, no evidence of physical impairment was offered, and the issue of physical injury was submitted to the jury solely upon the basis of the complainant's testimony that defendant had hurt her and she had screamed in pain. Such subjective testimony, without more, was under the circumstances of this case, insufficient to establish beyond a reasonable doubt that complainant sustained either impairment of physical condition or substantial pain within the meaning of subdivision 2 of section 140.30, and subdivision 9 of section 10.00 Penal of the Penal Law (cf. People v. Jimenez, 55 N.Y.2d 895, 896; People v. McDowell, 28 N.Y.2d 373, 375; Matter of Robin B., 78 A.D.2d 679; Matter of John G., 82 A.D.2d 861). Accordingly, the conviction for burglary in the first degree should be reduced to the lesser included offense of burglary in the third degree, which lesser crime was proven at trial (cf. People v. Marrero, 67 A.D.2d 951). Damiani, J.P., Thompson, Bracken and Boyers, JJ., concur.