People v. Tabachnik

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dun-kin, J., at trial; Zelman, J., at sentence), rendered June 18, 1984, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The evidence adduced at trial was insufficient to prove that the complainant suffered "physical injury” within the meaning of Penal Law § 10.00 (9) and § 120.00 (1). The complainant testified that as a result of being kicked in the thigh by the defendant, his upper thigh "was very sore * * * it hurt, it stung”. That night, his groin area felt very sore, and was 612 "very black and blue”. However, two days later, the groin area only felt sore if the complainant pressed it. There is no evidence that the complainant experienced any pain beyond two days after the incident. The pain about which the complainant testified did not reach the objective level required to be considered substantial (see, Matter of Philip A., 49 NY2d 198; People v Goins, 129 AD2d 733). Moreover, no evidence was adduced that the complainant suffered any impairment of physical condition. Consequently, the judgment of conviction must be reversed. Mollen, P. J., Bracken, Niehoff and Lawrence, JJ., concur.