Opinion
April 14, 1999
Legal Aid Society, New York City (Daniel L. Greenberg and William B. Carney of counsel, for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Patricia Curran and Andrew Livernois of counsel), for respondent.
PRESENT: HON. STANLEY PARNESS, P.J., HON. HELEN E. FREEDMAN, Justices.
Judgment of conviction rendered April 16, 1996 (Barbara F. Newman, J.) affirmed.
Defendant stands convicted, after a jury trial, of third-degree assault upon evidence, including independent eyewitness testimony, that he punched the female complainant with a closed first as the two were about to enter a New York City subway train. The complainant's testimony that for several days after the incident the bottom of her face and jaw were bruised and swollen, that her jaw felt as if it were "out of alignment", the she had difficulty eating, and that she took pain medication is sufficient to support the jury's finding that the complainant sustained a physical injury (see, Penal Law § 10.00;Matter of Shawn L., 233 A.D.2d 953). To the extent that the complainant's hospital record may have been insufficient to establish that she suffered a "partial dislocation" of her jaw as alleged in the underlying information, the claimed defect in proof is not fatal to the People's case. "Not every fact mentioned in an [accusatory instrument] is essential to establish the defendant's guilt of the crime charged, and thus it is not necessary in every case that the People prove all [facts] alleged in the [accusatory instrument] when the remaining [facts] alleged are sufficient to sustain a conviction." (People v. Rooney, 57 N.Y.2d 822, 823). In this case the jury could find that the complainant experienced "substantial pain" as alleged in the information, even though her jaw may not have been dislocated.
Nor did the trial court err in modifying its initialMolineux/Sandoval rulings. When defendant testified on direct-examination that he struck the complainant out of "fear" instilled by a newspaper article (admitted into evidence) about a then recent subway "slashing" incident, this opened the door to the prosecutor's use on cross-examination of evidence, with proper limiting instructions, relating to the defendant's prior convictions involving subway assaults (see, People v. Molineux, 168 N.Y. 264, 293; People v. Berrios, 216 A.D.2d 28, lv denied 86 N.Y.2d 779). In any event, any error in the receipt of this evidence was harmless in view of the overwhelming evidence of guilt (People v. Berrios, supra).