Opinion
June 4, 1985
Appeal from the Ontario County Court, Reed, J.
Present — Callahan, J.P., Boomer, Green, O'Donnell and Pine, JJ.
Judgment unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: We have reviewed the issues raised by defendant in his pro se brief and we find all, except one, without merit. Defendant contends that the People failed to prove that the three police officers he allegedly assaulted with a pocket knife sustained physical injuries as defined by Penal Law § 10.00 (9). We conclude that the bruises suffered by Officer Webster, which were "very painful" for three or four days, and the deeper cut to Sergeant Rossolo's head, which caused "sharp pain" and required three or four stitches, qualify as physical injuries. The People failed to prove, however, that the superficial scratches on Sergeant Ruggles' face so qualified. No details were given concerning the extent of these scratches and the sergeant's testimony that they caused him "discomfort or pain" did not meet the statutory requirement of "substantial pain" (see, People v. Jimenez, 55 N.Y.2d 895; Matter of Philip A., 49 N.Y.2d 198).
Accordingly, the judgment is modified by reversing the conviction of assault in the second degree based upon the third count in the indictment, by dismissing that count, and by vacating the sentence imposed thereon.