People v. Jimenez

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be modified by reversing defendant’s conviction for assault in the second degree, dismissing that part of the indictment, and vacating the sentence imposed on that count. As so modified, the order of the Appellate Division should be affirmed. The People failed to prove that the victim of the alleged assault suffered physical injury within the meaning of subdivision 6 of section 120.05 and subdivision 9 of section 10.00 of the Penal Law. Testimony that the victim suffered a one centimeter cut above her lip, without more, was not adequate to prove that the victim suffered either “substantial pain” (Matter of Philip A., 49 NY2d 198) or “impairment of a physical condition” (People v McDowell, 28 NY2d 373, 375). Defendant’s other contentions are either not preserved for review or do not warrant reversal by this court. Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler, Fuchsberg and Meyer concur; Judge Jones taking no part. Order modified in accordance with the memorandum herein and, as so modified, affirmed.