People v. Fernandez (Kenneth)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 4, 2017
• Docket: 2017 NYSlipOp 51288(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Kenneth Fernandez, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Lisa A. Sokoloff, J. at plea; Kate Paek, J. at sentencing), rendered September 8, 2015, convicting him, upon a plea of guilty, of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Lisa A. Sokoloff, J. at plea; Kate Paek, J. at sentencing), rendered September 8, 2015, affirmed.

The accusatory instrument was not jurisdictionally defective. It charged all the elements of third-degree assault (see Penal Law §§ 120.00[1]), and set forth sufficient factual allegations to warrant the conclusion that the victim suffered a "physical injury," i.e., "substantial pain" (Penal Law § 10.00[9]). The instrument recited that defendant used a "closed fist" to "strike" his 84 year-old grandfather on the "side of [the] face," causing his grandfather to suffer "substantial pain, redness and swelling." Based on these allegations, "a jury could certainly infer that the victim felt substantial pain" (People v Henderson, 92 NY2d 677, 680 [1999]; see People v Mercado, 94 AD3d 502 [2012], lv denied 19 NY3d 999 [2012]; People v Lang, 81 AD3d 538 [2011], lv denied 16 NY3d 896 [2011]), a term which simply means "more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]; see Penal Law § 10.00[9]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 04, 2017