Opinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. Kent D. SPRATLEY, Defendant–Appellant.
Christopher Jude Pelli, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
Christopher Jude Pelli, Utica, for Defendant–Appellant. Scott D. McNamara, District Attorney, Utica (Steven G. Cox of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
On appeal from a judgment convicting him upon a nonjury verdict of assault in the second degree (Penal Law § 120.05[2] ), defendant contends that the verdict is against the weight of the evidence because any injury to the victim was not caused by a deadly weapon and such injury did not constitute a “ ‘[p]hysical injury’ ” within the meaning of Penal Law § 10.00(9). Viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's contention ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We conclude that a finding by County Court that the victim's injury was not caused by a deadly weapon would have been unreasonable ( see generally Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1;Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
With respect to the element of physical injury, we note that “ ‘[p]hysical injury’ ” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ). Substantial pain means “more than slight or trivial pain[, but it] need not ... be severe or intense to be substantial” ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039). “A variety of factors are relevant in determining whether physical injury has been established, including ‘the injury viewed objectively, the victim's subjective description of the injury and [his or] her pain, and whether the victim sought medical treatment’ ” ( People v. Dixon, 62 A.D.3d 1036, 1039, 878 N.Y.S.2d 495,lv. denied12 N.Y.3d 912, 914, 884 N.Y.S.2d 693, 695, 912 N.E.2d 1074, 1076;see Chiddick, 8 N.Y.3d at 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039).
Here, the victim was injured by a bullet that grazed his face, “an experience that would normally be expected to bring with it more than a little pain” ( Chiddick, 8 N.Y.3d at 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039). He went to the hospital for treatment of his injury and received several stitches. The victim testified that he was in “excruciating pain” at the hospital and that he still has pain, as well as difficulty eating and talking. The hospital records admitted in evidence, however, demonstrated that the victim described his pain as “zero” out of 10 and that he was not prescribed any pain medication. We conclude that, although an acquittal based on the lack of a physical injury would not have been unreasonable, it cannot be said that the court failed to give the evidence the weight it should be accorded ( see People v. Dove, 86 A.D.3d 715, 717, 926 N.Y.S.2d 758,lv. denied17 N.Y.3d 903, 933 N.Y.S.2d 658, 957 N.E.2d 1162,18 N.Y.3d 882, 939 N.Y.S.2d 752, 963 N.E.2d 129; People v. Moye, 81 A.D.3d 408, 408–409, 915 N.Y.S.2d 554,lv. denied16 N.Y.3d 861, 923 N.Y.S.2d 423, 947 N.E.2d 1202;see also People v. Slater, 13 A.D.3d 732, 734, 786 N.Y.S.2d 602,lv. denied4 N.Y.3d 803, 795 N.Y.S.2d 178, 828 N.E.2d 94;see generally Danielson, 9 N.Y.3d at 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1;Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
As defendant correctly notes, the court failed to rule on his renewed motion to dismiss the indictment based on allegedly prejudicial conduct during the grand jury proceeding. Contrary to the People's contention, pursuant to People v. Concepcion, 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779 and People v. LaFontaine, 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663,rearg. denied93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094, we cannot deem the court's failure to rule on the renewed motion as a denial thereof ( see People v. Chattley, 89 A.D.3d 1557, 1558, 932 N.Y.S.2d 750). We therefore hold the case, reserve decision and remit the matter to County Court for a ruling on defendant's renewed motion to dismiss the indictment.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Oneida County Court for further proceedings.