The People of the State of New York, Respondent, v. Franto Chery, Appellant

The People of the State of New York, Respondent, v Franto Chery, Appellant. [66 NYS3d 887] [MAJORITY] Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond Guzman, J.), rendered April 23, 2014, convicting him of attempted robbery in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant contends that the evidence was legally insufficient to support the finding that the complainant suffered “physical injury,” an element of the crimes of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [a]) and assault in the third degree (Penal Law § 120.00 [1]). Physical injury is defined as either the impairment of physical condition or substantial pain (see Penal Law § 10.00 [9]). “[impairment of physical condition” does not require a victim’s incapacitation (People v Tejeda, 78 NY2d 936, 938 [1991] [internal quotation marks omitted]). “ ‘[Substantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain,” although “[p]ain need not, however, be severe or intense to be substantial” (People v Chiddick, 8 NY3d 445, 447 [2007]). Whether substantial pain has been proved is generally a question for the trier of fact (see People v Rojas, 61 NY2d 726, 727 [1984]; Matter of Philip A., 49 NY2d 198, 200 [1980]; People v Monserrate, 90 AD3d 785, 787 [2011]). Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish the element of physical injury (see People v Stanback, 149 AD3d 877, 878 [2017]; People v Carson, 126 AD3d 996, 997 [2015]; People v Rose, 120 AD3d 593, 594 [2014]). Moreover, upon our independent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). Mastro, J.P., Hall, Sgroi and Duffy, JJ., concur.