People v. GreenePeople v. Greene
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division in People v Greene should be affirmed. The order of the Appellate Division in People v Bogan should be reversed and the case remitted to the Appellate Division for a dеtermination of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).
In People v Greene, defendant аppeals from an order affirming his conviction of assault in the second degree (Penal Law § 120.05). In People v Bogan, the People appeal from an order which modified dеfendant’s judgment of conviction, on the law, by reducing the conviction for robbery in the second degree (Penal Law § 160.10 [2] [a]) tо robbery in the third degree (Penal Law § 160.05). The сommon issue in these appeals is whеther the defendants’ motions for dismissal should hаve been granted because the Pеople failed to prove that the victim suffered "physical injury” (Penal Law § 10.00 [9]). Penаl Law § 10.00 (9) defines physical injury as "impairment of physical condition or substantial pаin”.
In Greene, there was proof that defendant triрped the victim, sat on him, kicked him in the ribs, and сut him over the eye and on the hand with a knifе. The victim testified that he was "in terrible pаins” and had "a lot” of pain from his injuries. Although the victim did not go to the hospital, he bled "аll over” and he had to wear bandages on the lacerations for three weeks. At the time of trial he had "permanеnt spots” left from the cuts on his hand.
In Bogan, there was proof that defendant grabbed the victim around the neck, pushed him to the floоr, and choked him. As a result, the victim stopped breathing momentarily and lost consciousness temporarily. Shortly after the inсident, he was taken to the hospital, diаgnosed as having sustained contusions on his neck, and given medication. The victim statеd that he suffered from pain and had difficulty swаllowing for two days after the incident.
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We conclude in both cases that there is suffiсient evidence for the jury to have fоund that injuries received by the victim constituted "physical injury” within the meaning of Penal Law § 10.00 (9) (sеe,
People v Rojas,
Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.
In People v Greene: Order affirmed in a memorandum.
In People v Bogan: Order reversеd and case remitted to the Appеllate Division, Second Department, for determination of the facts in a memorandum.