People v. Prosser , 130 A.D.2d 972 ( 1987 )

Judgment unanimously reversed, on the law, count one of indictment dismissed, and new trial granted on counts three, four and five of indictment. Memorandum: After the jurors had commenced their deliberations, reversible error was committed when, in direct contravention of the court’s instructions, some of the jurors were transported to and from dinner unsupervised by court officers (see, CPL 310.10; People v Thomas, 91 AD2d 857; People v Clayborn, 50 AD2d 952).

Further, there was insufficient evidence of physical injuries to support the conviction of assault, second degree. The People failed to prove that the victim suffered either substantial pain or impairment of physical condition (see, Penal Law § 10.00 [9]). The injuries consisted of linear abrasions on the side of the neck and the victim testified that he suffered slight pain, not much pain "to worry about”. Although the victim said he had hoarseness of voice, the record is insufficient to establish whether the hoarseness was of such a degree as to constitute impairment of physical condition. (Appeal from judgment of Jefferson County Court, Hurlbutt, J.—assault, second degree, and other offenses.) Present—Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.