People v. Cheeks

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohn, J.), rendered August 31, 1987, 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 legally insufficient to establish that the complainant suffered "physical impairment” (People v McDowell, 28 NY2d 373, 375), or "substantial pain” (Matter of Phillip A., 49 NY2d 198, 200). General undeveloped assertions that a victim felt pain when hit does not establish "physical injury” (see, Penal Law § 10.00 [9]; People v Holden, 148 AD2d 635; People v Williams, 101 AD2d 870). Here, the complainant testified that he experienced pain when the defendant hit him twice over the head with a gun. However, he did not indicate the duration or degree of pain. He also testified that he did not seek medical assistance or treatment. The only other testimony adduced relative to his injury was an officer’s observation of a "small abrasion” on the complainant’s head. Thus, the witnesses never elaborated on the duration or degree of the pain, nor provided some other objective indicia of "substantial pain” to properly sustain a charge of assault in the third degree (Penal Law § 120.00 [1]). Kunzeman, J. P., Rubin, Eiber and Miller, JJ., concur.