People v. Williams , 101 A.D.2d 870 ( 1984 )

Appeal by defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered April 27, 1981, convicting him of sodomy in the first degree (three counts), and assault in the second degree, upon a jury verdict, and imposing sentence. 11 Judgment modified, on the law, by reversing defendant’s conviction of assault in the second degree, and vacating the sentence imposed thereon, and that count of the indictment is dismissed. As so modified, judgment affirmed. UThe evidence at trial was legally insufficient to establish that the complainant suffered “physical impairment” {People v McDowell, 28 NY2d 373), or “substantial pain” {Matter of Philip A., 49 NY2d 198). The only physical injury complainant sustained was a scratch on her face as a result of a punch from defendant, which left a red mark and required only cleaning. Complainant testified that it hurt when defendant hit her and that she felt pain. However, her testimony was not developed further and the record does not indicate that the pain lasted for more than a short time. Thus, the People failed to establish that defendant caused physical injury to the complainant (see Penal Law, § 10.00, subd 9; cf. People v Coward, 100 AD2d 628), and accordingly, the conviction of assault in the second degree (Penal Law, § 120.05, subd 6) must be reversed, and that count of the indictment dismissed. 11 We have examined defendant’s other contentions and find them to be without merit. Titone, J. P., Mangano, Thompson and Brown, JJ., concur.