People v Daniels (Glen)

[*1] People v Daniels (Glen) 2019 NY Slip Op 50195(U) Decided on February 22, 2019 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2019
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Ling-Cohan, J.P., Gonzalez, Cooper, JJ.
570739/16

The People of the State of New York, Respondent,

against

Glen Daniels, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Laurence E. Busching, J.), rendered October 6, 2015, convicting him, upon a plea of guilty, of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Laurence E. Busching, J.), rendered October 6, 2015, affirmed.

The accusatory instrument was not jurisdictionally defective. It charged all the elements of third-degree assault (see Penal Law § 120.00[1]), and set forth sufficient factual allegations to warrant the conclusion that defendant intended to and did cause the victim to suffer a "physical injury," i.e., "substantial pain" (Penal Law § 10.00[9]). The instrument recited that a police officer was informed by the victim that during an argument, defendant "punched [her] in the face and pushed a screwdriver to [her] throat" and that the officer observed that the victim "had a bruise on the left side of her neck." Accepting these allegations as true, "a jury could certainly infer that the victim felt substantial pain" (People v Henderson, 92 NY2d 677, 680 [1999]; see People v Mercado, 94 AD3d 502 [2012], lv denied 19 NY3d 999 [2012]; People v Lang, 81 AD3d 538 [2011], lv denied 16 NY3d 896 [2011]), a term which simply means "more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]; see Penal Law § 10.00[9]). Likewise, at the pleading stage, defendant's intent to cause physical injury was readily inferable from his actions (see People v Bueno, 18 NY3d 160, 169 [2011]; see Matter of Edward H., 61 AD3d 473 [2009]; Matter of Marcel F., 233 AD2d 442 [1996]).

The minor divergence between the factual allegations in the complaint and those set forth in the supporting deposition did not impact upon the jurisdictional underpinnings of the prosecution (see People v Gonzalez, 184 Misc 2d 262 [App Term, 1st Dept 2000], lv denied 95 NY2d 835 [2000]; see also People v Barnes, 46 Misc 3d 137[A], 2015 NY

Slip Op 50034[U] [App Term, 2d, 11th and 13th Jud Dists 2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: February 22, 2019