People v. Swaby (Wayne)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 4, 2017
• Docket: 2017 NYSlipOp 51292(U)
• Status: Published

Opinion

The People of the State of New York, Respondent,

against

Wayne Swaby, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Erika M. Edwards, J.), rendered July 17, 2014, convicting him, upon a plea of guilty, of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Erika M. Edwards, J.), rendered July 17, 2014, affirmed.

The accusatory instrument was not jurisdictionally defective. It charged all the elements of third-degree assault (see Penal Law § 120.00[1]), and set forth sufficient factual allegations to warrant the conclusion that the victim suffered a "physical injury," i.e., "substantial pain" (see Penal Law § 10.00[9]). The instrument recited that defendant, upon refusing to leave a McDonald's restaurant when asked to do so by two security guards, "punch[ed] [the guards] with a closed fist" and "kick[ed] [the guards] with his feet," and as a result of defendant's actions, one of the security guards (Winslow) suffered "bruising and substantial pain to his left shin." Based on these allegations, "a jury could certainly infer that the victim felt substantial pain" (People v Henderson, 92 NY2d 677, 680 [1999]; see People v Mercado, 94 AD3d 502 [2012], lv denied 19 NY3d 999 [2012]; People v Lang, 81 AD3d 538 [2011], lv denied 16 NY3d 896 [2011]), a term which simply means "more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]; see Penal Law § 10.00[9]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 04, 2017