People v. Kenner

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hanophy, J.), rendered June 12, 2008, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish that the complainant sustained a physical injury, an element of the charge of assault in the third degree (see Penal Law §§ 120.00, 10.00 [9]). In particular, the complainant testified that the defendant and the defendant’s brother repeatedly kicked and punched him while he was in his car. The complainant was taken by ambulance to a hospital, where he complained of pain in the face and jaw and underwent a CT scan of the head and X-rays, and oxygen was administered to him. The complainant was also prescribed pain medication at 854 the hospital. He testified that one or two days later, areas on his chest and arm became swollen and “turned black and blue” and “hurt a lot,” and that he continued to take the prescription pain medication for several weeks. The People also introduced into evidence photographs showing the complainant’s injuries. Under these circumstances, there was legally sufficient evidence that the complainant suffered substantial pain, and therefore sustained a physical injury (see People v Chiddick, 8 NY3d 445, 447-448 [2007]; People v Andino, 73 AD3d 1195 [2010], lv denied 15 NY3d 801 [2010]; People v Nelson, 69 AD3d 762, 763 [2010]; People v Williams, 69 AD3d 662, 662-663 [2010]; People v Valencia, 50 AD3d 1163, 1164 [2008]; People v Krotoszynski, 43 AD3d 450, 452-453 [2007]). Fisher, J.P., Dillon, Florio and Lott, JJ., concur.