Opinion
October 21, 1991
Appeal from the Supreme Court, Kings County (Finnegan, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of robbery in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's conviction for robbery in the second degree (Penal Law § 160.10 [a]) required proof of "physical injury", defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00). In this case, there was no evidence of any physical impairment. The complainant sought no medical treatment. The only evidence of any physical injury was the complainant's testimony that the blows he suffered at the hand of the defendant "hurt", and his testimony, as well as police testimony, that he had a cut on his ear. While the question of whether the element of physical injury has been established is generally one for the trier of fact, "there is an objective level * * * below which the question is one of law" (Matter of Philip A., 49 N.Y.2d 198, 200). We find that the People have failed to present legally sufficient evidence to reach that objective level (see, People v. Jimenez, 55 N.Y.2d 895; People v. Jones, 118 A.D.2d 658; People v. Cicciari, 90 A.D.2d 853).
The defendant's remaining contentions are either unpreserved for appellate review (CPL 470.05) or without merit. Thompson, J.P., Kunzeman, Miller and Copertino, JJ., concur.