People v. Wooden

Sep 29, 2000
Versions:275 A.D.2d 935
713 N.Y.S.2d 415
2000 N.Y. App. Div. LEXIS 9703

—Judgment unanimously affirmed. Memorandum: Defendant was convicting of assault in the second degree (Penal Law § 120.05 [2]) for striking the victim on the side of the head with a handgun. We reject defendant’s argument that a handgun is not a dangerous instrument. A gun that is used as a bludgeon “is readily capable of causing death or other serious physical injury” (Penal Law § 10.00 [13]; see, People v Richardson, 166 AD2d 158, lv denied 76 NY2d 1024).

We likewise reject defendant’s argument that the evidence is legally insufficient to establish that the victim sustained a physical injury, defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). The victim lost consciousness, fell to the ground and bled profusely after being struck on the side of the head with the gun. He regained consciousness as he was being placed on a stretcher and was transported to the emergency room. His treating physician testified that the victim suffered a jagged partial thickness laceration to the right side of his head. A CT scan revealed swelling of the soft tissue in the area of the wound. The physician cleaned the wound, treated it with an antiseptic solution and recommended that the victim take Tylenol for the pain. The victim testified that he took pain medication, remained out of work for one week and continued to experience headaches after the incident. Thus, the evidence of physical injury is legally sufficient (see, Matter of Shawn L., 233 AD2d 953; People v Rivera, 207 AD2d 732, 733, lv denied 84 NY2d 1037).

Finally, we reject defendant’s argument that the verdict is against the weight of the evidence. In a bench trial, as in a jury trial, “the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference” (People v Van Akin, 197 AD2d 845). (Appeal from Judgment of Monroe County Court, Connell, J. — Assault, 2nd Degree.) Present— Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.