People v. Reed

83 A.D.2d 566, 441 N.Y.S.2d 10, 1981 N.Y. App. Div. LEXIS 14857

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1981
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Slavin, J.), rendered March 25,1980, convicting him of robbery in the second degree (two counts) and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of robbery in the second degree (second count) and assault in the second degree, and the sentences imposed thereon, and said counts are dismissed. As so modified, judgment affirmed. Robbery in the second degree (as set forth in count two) and the assault in the second degree of which defendant was convicted, require proof of a physical injury to the victim (Penal Law, § 160.10, subd 2, par [a]; § 120.05, subd 6). The victim testified that he received blows to the side of the head and to the bridge of his nose resulting in bruises, a headache and minor pain. Physical injury, for purposes of proof of the crimes charged, must be impairment of physical condition or substantial pain (Penal Law, § 10.00, subd 9). The proof adduced at trial fails to establish that the victim suffered the requisite physical injury (see Matter of Robin B., 78 AD2d 679; People v Morales, 75 AD2d 745; Matter of Derrick M., 63 AD2d 932). Hence, those convictions must be reversed, the sentences thereon vacated, and the counts of the indictment dismissed. There is no merit to the defendant’s remaining contentions. Rabin, J.P., Gulotta, Cohalan and Bracken, JJ., concur.