People v. Smith
176 A.D.2d 904
N.Y. App. Div.
1991
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-Appeal by the defendant from a judgment of the Supreme Court, Kings County (Finnegan, J.), rendered December 18, 1985, convicting him of robbery in the second degree, robbery in the third degree (two counts), and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of robbery in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

*905The defendant’s conviction for robbery in the second degree (Penal Law § 160.10 [2] [a]) required proof of "physical injury”, defined as "impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). In this case, there was no evidence of any physical impairment. The complainant sought no medical treatment. The only evidence of any physical injury was the complainant’s testimony that the blows he suffered at the hand of the defendant "hurt”, and his testimony, as well as police testimony, that he had a cut on his ear. While the question of whether the element of physical injury has been established is generally one for the trier of fact, "there is an objective level * * * below which the question is one of law” (Matter of Philip A., 49 NY2d 198, 200). We find that the People have failed to present legally sufficient evidence to reach that objective level (see, People v Jimenez, 55 NY2d 895; People v Jones, 118 AD2d 658; People v Cicciari, 90 AD2d 853).

The defendant’s remaining contentions are either unpreserved for appellate review (CPL 470.05 [2]) or without merit. Thompson, J. P., Kunzeman, Miller and Copertino, JJ., concur.