94 A.D.2d 897 | N.Y. App. Div. | 1983
— Appeal from a judgment of the County Court of Chemung County (Monroe, J.), rendered September 11, 1981, upon a verdict convicting defendant of the crimes of assault in the second degree and resisting arrest. Defendant’s conviction has its genesis in an altercation with two policemen outside an Elmira bar on the evening of April 8,1981. Despite the bartender’s admonition to refrain from removing liquor bottles from behind the bar, defendant, in the bartender’s absence, apparently continued to do so. The bartender then asked defendant to leave and when he refused the police were called; Officers James Minchin and Robert Grzejka responded. Although defendant eventually left the bar peacefully with the police, another person, Mark Van Atta, began abusing the officers. When Van Atta failed to heed police warnings to be quiet, Minchin placed him under arrest for disorderly conduct. According to the officers and the bartender, a struggle then ensued between Van Atta and Minchin during which defendant, while attempting to restrain Minchin, struck him in the face. Defense witnesses uniformly denied defendant had hit the officer. Defendant’s leading contention is that Officer Minchin did not sustain a “physical injury” within the meaning of the assault statute (Penal Law, § 120.05, subd 3). “Physical injury” is defined by subdivision 9 of section 10.00 of the Penal Law as “substantial pain” or “impairment of physical condition”. Minchin, who is six foot and four inches tall and weighs 245 pounds, testified that defendant’s punch was a “hard blow” which drove him back a step or two, caused his face to go numb, induced bleeding from the nose and generated a cut on the inside of his mouth. He suffered repeated bleeding from the nose over the next three or four days and tenderness and soreness of the lip. Minchin stated that his nose and lip “hurt quite well” during that period. Defendant emphasizes that Minchin neither sought medical attention for his injuries nor missed any work as a result of them. Though petty slaps, shoves and kicks do not amount to “physical injury” under the statute {Matter of Philip A., 49 NY2d 198, 200), we are satisfied from the force with which the blow was delivered, coupled with the degree of pain and recurring nosebleeds experienced by Minchin, that this was more than a technical battery, and whether “impairment of physical condition or substan