The terms "physical injury" and "serious physical injury" are key elements of proof in assault cases in New York; the applicability of each element depends on the degree, or severity, of the crime. Jurisprudence in this area continues to evolve, as it is often very fact-specific, and the interpretation of what constitutes a physical injury or serious physical injury varies by the court considering individual cases. This article reviews recent New York cases in this area, and highlights, where applicable, the differences in outcome among the judicial departments in their treatment of physical injury and serious physical injury as elements of assault in New York criminal law.
The Penal Law defines "physical injury" as the "impairment of physical condition or substantial pain." (1) The issue of "[w]hether the substantial [sic] pain' necessary to establish an assault charge has been proved is generally a question for the trier of fact." (2) Notwithstanding the foregoing, there is an objective threshold that must be met in order to constitute substantial pain and failure to meet that threshold requires dismissal of the charge as a matter of law. (3) Impairment of physical condition does not require a victim's incapacitation. (4)
As noted by the Court of Appeals in the seminal case of People v. Chiddick, (5) where the court discussed the factors to be considered in finding the element of "substantial pain," although it "cannot be defined precisely,... it is more than slight or trivial pain." (6) The "[p]ain need not, however, be severe or intense to be substantial." (7) In Chiddick, the defendant, during the course of a burglary in a building where the victim was working, bit the victim on the left ring finger which caused the victim's fingernail to crack and his finger to bleed. (8) The injury occurred when the victim attempted to hold on to the defendant, who then bit him in an effort to escape. (9) The victim then got into his car and pursued the defendant, and thereafter turned him over to the police. (10) The victim then sought treatment at a hospital, where he received a tetanus shot and a bandage. (11)
At the trial, the victim testified that the level of pain he suffered was "in between '[a] little' and 'a lot.'" (12) The defendant was found guilty of assault in the second degree and thereafter appealed. (13) The First Department upheld his conviction, finding that the victim's bite wound was sufficient to have "caused him an impairment of physical condition and substantial pain over a period of nearly a week." (14)
The Court of Appeals agreed, finding that the victim suffered more than trivial pain, and considered a number of factors in concluding that he had sustained a physical injury pursuant to Penal Law [section] 10.00(9). (15) These factors included the injury inflicted, viewed objectively, the victim's subjective description of what he felt, the fact that the victim sought medical treatment, and the defendant's motive in seeking to inflict injury to make the victim release him. (16)
In In re Philip A., the Court of Appeals held that "petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives" constitute only harassment and not assault, because they do not inflict physical injury. (17)
The case law continues to utilize the following primary factors in evaluating whether a physical injury has occurred. These include: "the injury viewed objectively, the victim's subjective description of the injury and his or her pain,... whether the victim sought medical treatment," and the defendant's motive. (18) The relevance of the defendant's motive hinges on the fact that "an offender more interested in displaying hostility than in inflicting pain will often not inflict much of it." (19)
It is possible that an objective account of the injury, unaccompanied by testimony about the degree of pain the victim experienced, will suffice to meet the threshold for physical injury. For example, in People v. Rojas, the Court of Appeals found that the People had proven that the defendant had committed a physical injury even though the victim gave no testimony as to pain, but the objective evidence showed that a bullet caused a laceration in the victim's back 1.5 inches in length, the result of which was still visible at the time of trial. (20) In addition, "the victim returned to the hospital the day after the assault [to have] the wound... redressed because it was oozing, and the doctor testified that the injury could have caused pain." (21)
As a clear example of a case in which a physical injury was not established, at one extreme, is In re Philip A., a juvenile delinquency proceeding in Family Court, in which the respondent was accused of having struck the victim twice in the face, causing the victim to cry, causing red marks on his face, and causing him pain, the level of which was not "spelled out." (22) The victim testified that he felt like "bumps were coming on [his face] though none did." (23) The Bronx County Family Court found that the respondent committed an act which, if committed by an adult, would constitute the crime of assault in the third degree, and adjudicated him a juvenile delinquent. (24) The First Department affirmed, with two Justices dissenting. (25) The Court of Appeals reversed, finding the respondent's conduct akin to "petty slaps," and thus finding it insufficient to establish the element of physical injury. (26) Similarly, in People u. Rios, (27) the First Department found no physical injury, and modified the defendant's conviction, where the photographs in evidence depicted only slight redness on the victim's neck and hands, the victim did not seek medical treatment and did not testify. (28)
In People v. Stokes, (29) the Second Department, in modifying the defendant's conviction from second degree robbery to third degree robbery, found that the evidence was also insufficient to establish the element of physical injury where the victim, a doctor on her way to work, was shoved and pushed to the ground by the defendant and another man who took her purse. (30) After the incident, she resumed walking to the hospital. (31) The complainant sustained a laceration and a welt on the back of her head, scratches and bruises on her elbow, and other bruises, which left her "sore for several days." (32) At the hospital, she was given painkillers, ice, and bandages. (33) She was able to return the work the following day. (34)
Other recent cases in which courts have found insufficient evidence of physical injury include People v. Boney, (35) where the victim "was attacked from behind and fell to the ground." (36) He sustained a bruised finger which required a splint. (37) Although he sought medical treatment, an X-ray showed no broken bones and he did not testify to any lingering pain. (38) On that basis, the Second Department modified, and reduced his conviction from second degree robbery to third degree robbery. (39) Similarly, in People v. Fews, (40) the Second Department recently vacated the defendant's conviction of assault in the third degree, in the interest of justice, finding insufficient evidence of physical injury where the complainant sustained a one-half inch laceration on one of her toes, which stopped bleeding before an emergency medical technician arrived at the scene. (41) There was no evidence to show she sustained more than trivial pain and her testimony that she was unable to wear shoes for an unspecified period time did not result in a finding of substantial pain. (42)
In People v. Taylor, (43) the court, reducing the defendant's conviction from second degree robbery to third degree robbery, again found that the element of physical injury was not met where the victim sustained a scratch and some reddening on her neck, and, although she went to the hospital, she did not receive any pain medication or a diagnosis to indicate a physical injury. (44) In People v. Perry, (45) the victim, a police officer, did not testify at trial. (46) The officer's "medical records... indicated that he suffered a laceration to a finger on his right hand, with abrasions, pain, and swelling." (47) The court found no evidence that the injuries sustained by the victim caused him more than trivial pain, or that the victim's ability to use his finger was impaired by these injuries, and vacated the defendant's conviction of assault in the second degree. (48)
The court reached a similar result in People v. Baksh, (49) a case in which neither of the two victims were found to have sustained a physical injury. (50) One victim's "upper back was bruised," and the other "suffered a small cut on his head that did not require suturing." (51) While "neither of the men sought medical attention," and, although one victim "testified that he had a 'little' pain for a '[c]ouple of days'" and the other "testified that he had 'slight' pain for 'a day or two,'" such testimony, even with the bruises and small cut, was insufficient to meet the threshold of physical injury. (52) The court vacated the defendant's conviction of second degree assault. (53) Similarly, in People v. Zalevsky, (54) the victim, a peace officer, "testified that the defendant kicked him in the leg." (55) As a result, "[t]he peace officer was 'bruised up a little bit' at the [area on his leg] where the defendant kicked him, but he did not seek any medical treatment or miss any work." (56) At trial, "he testified to experiencing 'minor pain' in his leg." (57) The court again vacated the defendant's conviction of second degree assault. (58)
Another factor that is often noted in the case law as aiding in the determination of whether a physical injury has occurred is not only the severity, but the duration of the victim's pain. (59) A case from the Third Department, People v. Williams, (60) is instructive. The duration of the pain from the victim's injury appears to be one factor of significance in Williams in...