Monday, December 11, 2006

AD4: testimony that officer was disoriented, “saw stars” and was in “great pain” enough to establish physical injury element of assault conviction

People v Gerecke, 2006 NY Slip Op 08441 [available here]

The People can sustain a conviction for Assault in the Second Degree by establishing that the alleged assault victim suffered a “physical injury”; a “physical injury” is defined in part as an injury causing “substantial pain.” (See Gerecke, 2006 NY Slip Op 08441.) In Gerecke, the assault victim was a police officer, who testified that “upon being being struck in the head by defendant, he ‘[saw] stars’ and was temporarily disoriented . . . [h]e further testified that it was the hardest blow that he had ever sustained and that he was in great pain.” (Id.) This would seem fairly flimsy proof to sustain an assault conviction--appellate courts usually require a bit more to establish a physical injury. (See, e.g. People v Rodriguez, 158 AD2d 376 [1st Dept 1990].) But the Fourth Department held the cop’s testimony was sufficient:

We conclude that the jury was entitled to credit the testimony of the officer and thus to find that he suffered substantial pain. The failure of the officer to seek medical treatment or to take off any time from work is not dispositive in determining whether he sustained a physical injury, inasmuch as “pain is subjective and different persons tolerate it differently.”

(Id. [citations omitted].)

The Court did hold that defendant’s conviction for Obstructing Governmental Administration in the Second Degree was not supported by legally sufficient evidence, where the indictment and bill of particulars alleged that the defendant interfered with an officer attempting to arrest the defendant’s “son Brandon”, and the proof at trial established that the police were in fact trying to arrest someone other than Brandon when defendant interfered. (See id.)