People v. Hill

83 A.D.3d 865, 920 N.Y.S.2d 684

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gavrin, J.), rendered January 17, 2008, convicting him of burglary in the first degree, upon a jury verdict, after a retrial, and imposing sentence.

Ordered that the judgment is reversed, on the law, the conviction of burglary in the first degree under count two of the indictment and the sentence imposed thereon is vacated, that count of the indictment is dismissed as against the defendant Shawn Hill, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

As this Court previously concluded on the appeal of one of the codefendants (see People v Phillips, 68 AD3d 1137 [2009]), viewing the evidence in the light most favorable to the prosecution, the evidence presented at trial was not legally sufficient to establish that the complainant, Clarence Washington, sustained a “physical injury” within the meaning of Penal Law § 10.00 (9), as “there was neither sufficient evidence of the extent of Washington’s injuries, nor sufficient evidence from which a jury could infer that he suffered substantial pain” (People v Phillips, 68 AD3d at 1138; see People v Pierrot, 31 AD3d 582 [2006]; People v Chapero, 23 AD3d 492, 493 [2005]; People v Almonte, 23 AD3d 392, 393-394 [2005]; People v Briggs, 285 AD2d 651, 652 [2001]; People v Holden, 148 AD2d 635 [1989]; People v Francis, 112 AD2d 167, 168 [1985]). Accordingly, the defendant’s conviction of burglary in the first degree (see Penal Law § 140.30 [2]), and the sentence imposed thereon, is vacated, and count two of the indictment must be dismissed as to the defendant.

The defendant’s remaining contention has been rendered academic in light of our determination. Covello, J.P., Eng, Hall and Roman, JJ., concur.