People v. McDowell

New York Court of Appeals

People v. McDowell

270 N.E.2d 716, 28 N.Y.2d 373, 321 N.Y.S.2d 894, 1971 N.Y. LEXIS 1297

CourtNew York Court of Appeals

DecidedMay 13, 1971

StatusPublished

Cited by65 cases

This text of 270 N.E.2d 716 (People v. McDowell) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McDowell, 270 N.E.2d 716, 28 N.Y.2d 373, 321 N.Y.S.2d 894, 1971 N.Y. LEXIS 1297 (N.Y. 1971).

Pincite

Opinion

[375]*375Memorandum. The judgment should be modified by reversing the conviction for assault in the second degree under the second count and dismissing that count of the indictment, and, as so modified, the judgment should be affirmed.

While the Penal Law (§ 120.05, subd. 3) requires no particular degree of physical impairment or substantial pain under the definition of physical injury in the Penal Law to sustain a conviction (§ 10.00, subd. 9), there must be evidence establishing the one or the other. In this case the incidental reference to a blackened eye without any development of its appearance, seriousness, accompanying swelling, or suggestion of pain was insufficient to sustain the felony conviction. It is interesting that for the altercation with the civilian underlying the first count of the indictment, the jury saw fit to extend leniency by convicting defendant only of the lesser misdemeanor charge. This shows the importance of the one element to sustain the second count. For the grave consequences of a felony conviction and sentence to depend on the casual reference in the record to the blackened eye is unsound. Certainly, the undeveloped evidence of the record fails to provide evidence to satisfy this critical element of the felony upon which the jury could find guilt beyond a reasonable doubt.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Bkeitel, Jasen and Gibson concur.

Judgment accordingly.

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[375]*375Memorandum. The judgment should be modified by reversing the conviction for assault in the second degree under the second count and dismissing that count of the indictment, and, as so modified, the judgment should be affirmed.

While the Penal Law (§ 120.05, subd. 3) requires no particular degree of physical impairment or substantial pain under the definition of physical injury in the Penal Law to sustain a conviction (§ 10.00, subd. 9), there must be evidence establishing the one or the other. In this case the incidental reference to a blackened eye without any development of its appearance, seriousness, accompanying swelling, or suggestion of pain was insufficient to sustain the felony conviction. It is interesting that for the altercation with the civilian underlying the first count of the indictment, the jury saw fit to extend leniency by convicting defendant only of the lesser misdemeanor charge. This shows the importance of the one element to sustain the second count. For the grave consequences of a felony conviction and sentence to depend on the casual reference in the record to the blackened eye is unsound. Certainly, the undeveloped evidence of the record fails to provide evidence to satisfy this critical element of the felony upon which the jury could find guilt beyond a reasonable doubt.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Bkeitel, Jasen and Gibson concur.

Judgment accordingly.

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Bluebook (online)

270 N.E.2d 716, 28 N.Y.2d 373, 321 N.Y.S.2d 894, 1971 N.Y. LEXIS 1297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcdowell-ny-1971.

Opinion

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