        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

631
KA 11-00486
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENT D. SPRATLEY, DEFENDANT-APPELLANT.


CHRISTOPHER JUDE PELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered November 17, 2010. The judgment convicted
defendant, after a nonjury trial, of assault in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Oneida County Court for further
proceedings.

     Memorandum: On appeal from a judgment convicting him upon a
nonjury verdict of assault in the second degree (Penal Law § 120.05
[2]), defendant contends that the verdict is against the weight of the
evidence because any injury to the victim was not caused by a deadly
weapon and such injury did not constitute a “ ‘[p]hysical injury’ ”
within the meaning of Penal Law § 10.00 (9). Viewing the evidence in
light of the elements of the crime in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention (see
generally People v Bleakley, 69 NY2d 490, 495). We conclude that a
finding by County Court that the victim’s injury was not caused by a
deadly weapon would have been unreasonable (see generally Danielson, 9
NY3d at 348; Bleakley, 69 NY2d at 495).

     With respect to the element of physical injury, we note that
“ ‘[p]hysical injury’ ” is defined as “impairment of physical
condition or substantial pain” (Penal Law § 10.00 [9]). Substantial
pain means “more than slight or trivial pain[, but it] need not . . .
be severe or intense to be substantial” (People v Chiddick, 8 NY3d
445, 447). “A variety of factors are relevant in determining whether
physical injury has been established, including ‘the injury viewed
objectively, the victim’s subjective description of the injury and
[his or] her pain, and whether the victim sought medical treatment’ ”
(People v Dixon, 62 AD3d 1036, 1039, lv denied 12 NY3d 912, 914; see
Chiddick, 8 NY3d at 447-448).
                                 -2-                           631
                                                         KA 11-00486

     Here, the victim was injured by a bullet that grazed his face,
“an experience that would normally be expected to bring with it more
than a little pain” (Chiddick, 8 NY3d at 447). He went to the
hospital for treatment of his injury and received several stitches.
The victim testified that he was in “excruciating pain” at the
hospital and that he still has pain, as well as difficulty eating and
talking. The hospital records admitted in evidence, however,
demonstrated that the victim described his pain as “zero” out of 10
and that he was not prescribed any pain medication. We conclude that,
although an acquittal based on the lack of a physical injury would not
have been unreasonable, it cannot be said that the court failed to
give the evidence the weight it should be accorded (see People v
Dove, 86 AD3d 715, 717, lv denied 17 NY3d 903, 18 NY3d 882; People v
Moye, 81 AD3d 408, 408-409, lv denied 16 NY3d 861; see also People v
Slater, 13 AD3d 732, 734, lv denied 4 NY3d 803; see generally
Danielson, 9 NY3d at 348-349; Bleakley, 69 NY2d at 495).

     As defendant correctly notes, the court failed to rule on his
renewed motion to dismiss the indictment based on allegedly
prejudicial conduct during the grand jury proceeding. Contrary to the
People’s contention, pursuant to People v Concepcion (17 NY3d 192,
197-198) and People v LaFontaine (92 NY2d 470, 474, rearg denied 93
NY2d 849), we cannot deem the court’s failure to rule on the renewed
motion as a denial thereof (see People v Chattley, 89 AD3d 1557,
1558). We therefore hold the case, reserve decision and remit the
matter to County Court for a ruling on defendant’s renewed motion to
dismiss the indictment.




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
