People v. Sylvester
Opinion of the Court
Order unanimously reversed on the law, motion denied, indictment reinstated and matter remitted to Supreme Court for further proceedings on the indictment. Memorandum: Supreme Court erred in granting defendant’s motion to dismiss the indictment on the ground that the evidence before the Grand Jury was legally insufficient to support the charges of assault in the second degree (Penal Law § 120.05 [3]). On a motion to dismiss an indictment under CPL 210.20 (1) (b), the sufficiency of the People’s presentation “is properly determined by inquiring whether the evidence [,] viewed in the light most favorable to
Penal Law § 120.05 (3) provides that a person is guilty of assault in the second degree when, “[w]ith intent to prevent a * * * police officer * * * from performing a lawful duty, he causes physical injury to such * * * police officer”. “Physical injury” is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). When viewed in the light most favorable to the People, the evidence of the subjective pain felt by each of the officers upon being struck by defendant with a wooden stick-type bat or club, the swelling induced by the injury, and the length of time that the pain and swelling continued is sufficient at this stage to establish physical injury within the meaning of the assault in the second degree charge (see, People v Richards, 128 AD2d 387, 388, lv denied 70 NY2d 654; see also, People v Jackson, 232 AD2d 193, 194, lv denied 89 NY2d 924; People v Kim, 225 AD2d 496, lv denied 88 NY2d 987; People v Mallard, 207 AD2d 1018, lv denied 84 NY2d 1013). (Appeal from Order of Supreme Court, Erie County, Rossetti, J. — Dismiss Indictment.) Present — Denman, P. J., Green, Pigott, Jr., Callahan and Boehm, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.