(914) 220-1086A court in upstate New York (Niagara County) recently dismissed a misdemeanor charge of assault in the third degree due to a fatal defect in the factual assertions of the case included in the accusatory instrument. As a brief background, the defendant was accused of punching his brother-in-law in the face, and subsequently striking him in the face with a stick. As a result, the brother-in-law suffered an abrasion to the face for which he received medical attention. After the on-site treatment, the brother-in-law received no further medical care for the wound.
According to Section 120 of the Penal Code, an individual is guilty of assault in the third degree if he or she intends to cause physical harm to another individual, and causes such harm; recklessly causes physical injury to another person; or negligently causes physical injury to another person with a deadly weapon or dangerous instrument. Physical injury is defined by the Code as “impairment of physical condition or substantial pain.”
As the statute states, impairment of physical condition or substantial pain must be shown to prove physical injury. The court cites a previous decision, People v. Chiddick, which ruled that when substantial pain is established, so too is physical injury. Of course, as the court concedes, “substantial pain” has a subjective standard. In Chiddick, there was evidence of bleeding and a broken fingernail, as well as testimony from the victim. In the present case, the only claim regarding “physical injury” included in the accusatory instrument was a minor abrasion to the face. As such, the court ruled that the State’s case was defective, as it did not properly allege the element of substantial pain. In light of this, the court granted the defendant’s motion to dismiss the charge of assault in the third degree.
People v. McDowell, 11030021, NYLJ 1202514685987, at *1 (Town, Niagara, Decided August 16, 2011).
