People v. Melcherts

147 A.D.2d 594, 537 N.Y.S.2d 889, 1989 N.Y. App. Div. LEXIS 1631

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1989
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedmann, J.), rendered April 9, 1986, convicting him of sexual abuse in the first degree, assault in the third degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of assault in the third degree, vacating the sentence imposed thereon and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The complainant’s testimony that she was in a great deal of pain because the defendant punched her in the stomach, absent any indication of the duration of the pain, in conjunction with the medical resident’s testimony that the complainant’s abdomen was tender, was insufficient to establish that the complainant sustained physical injury which is an element of assault in the third degree (Penal Law § 120.00) (see, Matter of Phillip A., 49 NY2d 198, 200; People v Reed, 83 AD2d 566; Matter of Derrick M., 63 AD2d 932). Therefore, the conviction of assault in the third degree must be reversed.

We have considered the defendant’s remaining contentions and find that they are either unpreserved for appellate review or without merit. Thompson, J. P., Rubin, Spatt and Balletta, JJ., concur.