Opinion
5 KA 15–01225
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Edwin F. TALBOTT, II, Defendant–Appellant.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR RESPONDENT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of assault in the second degree ( Penal Law § 120.05 [3 ] ). The case arose from an incident in which defendant struggled with parole officers who were arresting him for alleged parole violations. During the fracas, defendant fell on the left knee of one of the officers. We reject defendant's contention that his conviction is not supported by legally sufficient evidence that the officer sustained physical injury, which is defined as "impairment of physical condition or substantial pain" (§ 10.00[9] ). " ‘[S]ubstantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain" ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ). Here, the officer testified that he felt "a radiant pain throughout [his] entire knee." He described the pain level while standing or putting pressure on the knee as a 7 or 8 on a scale of 1 to 10, causing him to limp "noticeably" for a "couple days," and he further testified that he used ibuprofen on the day of the injury to manage the pain. We conclude that his testimony is sufficient to establish that he sustained physical injury (see People v. Kraatz, 147 A.D.3d 1556, 1557 [4th Dept. 2017] ; People v. Delaney, 138 A.D.3d 1420, 1421, 30 N.Y.S.3d 434 [4th Dept. 2016], lv denied 28 N.Y.3d 928, 63 N.E.3d 77 [2016] ). 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 [2007] ), we reject defendant's further contention that the verdict is against the weight of the evidence on the issue of physical injury (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.