People v. Sherrod

132 A.D.2d 683, 518 N.Y.S.2d 53, 1987 N.Y. App. Div. LEXIS 49225

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 20, 1987
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered October 16, 1984, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

On appeal the defendant argues that the prosecution failed to prove beyond a reasonable doubt that the complainant, Eugene Steele, suffered a "physical injury” as defined in Penal Law § 10.00 (9) in order to sustain a finding of guilt of assault in the second degree (Penal Law § 120.05 [7]). We disagree.

The defendant struck Steele several times in the face, causing swelling and discoloration below his right eye. The evidence at trial established that Steele sought and received medical treatment for his injury. In fact, Steele was diagnosed as having suffered from myalgia, a morbid condition of a muscle, characterized by pain and tenderness, and the treating physician prescribed five days of bed rest, the application of warm compresses, and a muscle relaxant. Moreover, Steele testified that he experienced throbbing pain for two or three days, and that he missed four days of work on account of this injury. This evidence clearly established beyond a reasonable doubt that the victim suffered physical injury within the meaning of Penal Law § 10.00 (9).

The defendant’s remaining contention is unpreserved for appellate review, and, in any event, is without merit. Mollen, P. J., Brown, Rubin and Kunzeman, JJ., concur.