New York Court of Appeals, 1971

People v. McDowell

New York Court of Appeals · Decided May 13, 1971

28 N.Y.2d 373; 270 N.E.2d 716; 321 N.Y.S.2d 894; 1971 N.Y. LEXIS 1297

Cases that cite this one

62 later published cases cite this decision. The 25 that cite it most often are listed here.

Commonwealth v. Kirkwood (Pa. 1987)
People v. Alvarenga-Mendez (New York Town and Village Courts 2025)
People v. Alvarenga-Mendez (New York Town and Village Courts 2025)
Commonwealth v. Wertelet (Pa. Super. Ct. 1997)
Commonwealth v. Rowlands (Centre County Court of Common Pleas 1993)
McCummings v. New York City Transit Authority (Appellate Division of the Supreme Court of New York 1992)
People v. Gordon (Appellate Terms of the Supreme Court of New York 1981)
In re Philip A. (N.Y. 1980)
People v. Almonte (New York Supreme Court 1980)
People v. Hinchey (Appellate Division of the Supreme Court of New York 2025)
Richards v. Harvey (District Court, E.D. New York 2025)
People v. Green (Appellate Division of the Supreme Court of New York 2021)
People v. Bermudez (Guillermo) (Appellate Terms of the Supreme Court of New York 2018)
People v. Stanback (Appellate Division of the Supreme Court of New York 2017)
People v. Perez (Criminal Court of the City of New York 2013)
People v. Brown (Appellate Division of the Supreme Court of New York 2012)
People v. Brown (Appellate Division of the Supreme Court of New York 2012)
People v. Smith (Appellate Division of the Supreme Court of New York 2009)
People v. Alston (Appellate Division of the Supreme Court of New York 2007)
Jeannie B. v. Roger D. (Appellate Division of the Supreme Court of New York 2006)
People v. Backus (Appellate Division of the Supreme Court of New York 2003)
People v. Plate (New York Town and Village Courts 2003)
People v. Lewis (Appellate Division of the Supreme Court of New York 2002)
People v. Reynolds (Appellate Division of the Supreme Court of New York 2001)
People v. Ward (Appellate Division of the Supreme Court of New York 1992)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

*375Memorandum. The judgment should be modified by reversing the conviction for assault in the second degree under the second count and dismissing that count of the indictment, and, as so modified, the judgment should be affirmed.

While the Penal Law (§ 120.05, subd. 3) requires no particular degree of physical impairment or substantial pain under the definition of physical injury in the Penal Law to sustain a conviction (§ 10.00, subd. 9), there must be evidence establishing the one or the other. In this case the incidental reference to a blackened eye without any development of its appearance, seriousness, accompanying swelling, or suggestion of pain was insufficient to sustain the felony conviction. It is interesting that for the altercation with the civilian underlying the first count of the indictment, the jury saw fit to extend leniency by convicting defendant only of the lesser misdemeanor charge. This shows the importance of the one element to sustain the second count. For the grave consequences of a felony conviction and sentence to depend on the casual reference in the record to the blackened eye is unsound. Certainly, the undeveloped evidence of the record fails to provide evidence to satisfy this critical element of the felony upon which the jury could find guilt beyond a reasonable doubt.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Bkeitel, Jasen and Gibson concur.

Judgment accordingly.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.