BAEC Bulletin - July/August 2025

| July/August 2025 | BAEC Bulletin

BAEC Bulletin | July/August 2025 |

ASSAULT AND PHYSICAL INJURY: HOW BAD DOES IT HAVE TO BE? BY HON. THOMAS P. FRANCZYK, MENTOR-AT-LARGE TO THE ASSIGNED COUNSEL PROGRAM INTRODUCTION People sometimes confuse Harassment 2nd degree Incidental reference to a black eye with no development of its appearance, seriousness or pain level was insufficient). In Philip A., the evidence showed only that the

The court, citing Philip A . and Chiddick, supra, stressed that the legislature did not intend for a wholly subjective criterion to determine physical injury. Rather, a court should also examine objective factors (which alone can be sufficient) including the injury itself, the nature and duration of its impact on the victim and whether he/she had to seek medical attention. In the court’s view, there were no facts alleged from which a reasonable inference of substantial pain could be drawn. In People v Rojas (61 NY2d 726 [1984]), the Court upheld the lower court’s denial of the defendant’s motion to dismiss the charge of Assault 2nd degree for lack of physical injury where the evidence showed that the victim sustained a 1.5 cm grazing gunshot laceration to his back which was still visible as the time of trial. The victim had returned to the hospital the day after the incident to have the wound redressed due to oozing. The Court concluded that the jury could fairly infer that there was substantial pain even though the victim did not specify the level he experienced, and a doctor testified only that such an injury could be painful. In People v Green (70 NY2d 860 [1987]), the Court of Appeals found sufficient evidence of physical injury where the victim bled profusely from lacerations to

his eye and hands. He wore bandages for a few weeks and had permanent marks from a beating (sat on, kicked in ribs, punched and cut with a knife) which caused much pain. In contrast, see People v Jiminez (55 NY2d 895 [1982]), where there was no testimony that the victim’s one cm laceration left any residual scar or required any medical attention. FINAL THOUGHT Good prosecutors will typically take their time and develop both the objective and subjective elements of the victim’s injuries, not only to meet the legal threshold for physical injury but also to engender sympathy from the jury. While that should be expected, defense counsel should be sure to reign them in if they wander into areas (e.g., inability to perform daily functions, emotional distress) that are better suited to civil cases for money damages. However, if counsel has evidence that contradicts the victim’s claims (e.g., photos of him/her bowling when they claim debilitating back injuries from an assault), maybe better then to let them carry on and lower the boom on cross examination. That of course is a matter of strategy which, if properly executed, can help eliminate the possibility (and substantial pain) of an unfavorable verdict.

(Penal Law § 240.26[1]) with Assault 3rd degree (Penal Law § 120.00[1]) because they both involve some kind of offensive physical contact inflicted by one person upon another. However, they are substantively different in that the former requires an intent

respondent hit the victim, caused him to cry from pain and left a red mark. In the court’s view, this was more consistent with petty slaps, shoves and kicks delivered out of hostility rather than with an intent to cause physical injury. As such, the evidence did not meet the threshold for physical injury and the J.D. finding of the lower court was reversed. WHEN DOES PAIN BECOME SUBSTANTIAL? In People v Chiddick (8 NY3d 445 [2007]), the Court held that where there is objective evidence of injury, the subjective pain experienced by the victim need not be described as severe or unbearable to meet the requirements of physical injury. Rather, it need only be more than slight or trivial. The defendant, a burglar, bit the finger of the “victim” who confronted him and put him in a headlock after he entered the premises unlawfully. To free himself, the defendant bit the man’s finger, breaking the nail and causing it to bleed. He described the pain as being “between a little and a lot,” and testified that he went to the hospital where he was treated with a bandage and a tetanus shot. In addition to the objective indicia of injury, the Court also found that the defendant’s motive for chomping down on the victim’s finger (to escape from his grasp) demonstrated an intent to inflict injury to effectuate his purpose rather than the type of aimless hostility generally associated with petty slaps, shoves and the like. Similarly, in People v Henderson (92 NY2d 677 [1999]), the Court found sufficient evidence of physical injury to uphold an information where the defendant and another allegedly kicked the victim’s legs, causing contusions, swelling and substantial pain after they knocked him off his scooter. The Court also took note that their motive was to attack and hurt the victim so they could steal his property. In contrast, see People v Perez (40 Misc3d 448 [Crim. Ct., Queens County 2013]) where the court dismissed a misdemeanor complaint charging Assault 3rd degree which alleged in conclusory fashion that the defendant punched the victim in the back, causing substantial pain.

to harass, annoy or alarm while the latter requires an intent to cause (and the causing of) physical injury. Therefore, since one can commit an assault without necessarily committing harassment at the same time, harassment does not constitute a lesser-included offense of assault. (People v Moyer, 27 NY2d 252 [1970]). PHYSICAL INJURY While slaps, kicks and punches can certainly hurt, the question is how bad must the pain be before the physical consequences of offensive contact rise to the level of physical injury sufficient to sustain an assault charge? Penal Law section 10.00(9) defines physical injury as impairment of physical condition or substantial pain. An extended inability to put weight on one’s leg, or to flex one’s wrist without sharp pain or to concentrate on account of recurring headaches from a painful blow all seem to qualify as physical impairment (see, for example, People v Carter, 6 AD3d 174 [4th Dept 2004]; People v Hines, 9 AD3d 507 [3rd Dept 2004]). Pain by its very nature is both subjective and relative. As noted in matter of Philip A. (49 NY2d 198 [1980]), while touching the skin of a burn victim may well bring excruciating pain, a hard punch to the gut of a gymnast might land like a feather. Recognizing that one’s subjective complaints are an important (but alone, not determinative) consideration in assessing physical injury, the Court in Philip A . noted that there is an objective level below which the question is one of law for the court to decide before it can become a question of fact for the jury to resolve (citing People v McDowell , 28 NY2d 373 [1973]:

JOIN THE ASSIGNED COUNSEL PROGRAM Save Lives, Save Families.

Family Court On July 26, the Family Court Division will oer training on shaken baby syndrome and other trauma in children and infants which arise in Art 10 res ipsa cases. Deputy for Litigation Support Mary Beth DePasquale will be covering the topic intensively. The Family Court team of Yvonne Vertlieb and Kevin Condon will hold lunchtime case conferences on July 22 and August 26.

Criminal Division There will be an Evidence Update with Professor Michael Hutter, Esq. of Albany Law School; Professor Hutter is also the Evidence columnist for the New York Law Journal, publishing a bimonthly article discussing recent NewYork evidence cases decided by the courts. The date will be announced soon. New/Misdemeanor Attorney Training Program – there are two spots remaining for the October 2025 program.

Erie County Bar Association Aid to Indigent Prisoners Society, Inc Assigned Counsel Program The Brisbane Building 403 Main Street, Suite 215 Bualo, NY 14203 Phone: 716.856.8804 Fax: 716.856.0424 Website: www.assigned.org