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Justice Massaro

THE DEFENDANT allegedly punched the complainant when he and his cohorts unsuccessfully demanded the complainant’s telephone. Police responding to the complainant’s 911 call, noted that although the complainant was upset, he did not bleed or cry, nor did he have cuts, lacerations or visible injuries. The complainant, who said that he “suffered pain,” never sought medical treatment and took only over-the-counter pain medication. Defendant sought dismissal of charges of second-degree attempted robbery and second-degree assault on the grounds that the prosecution failed to establish that the complainant suffered a physical injury as defined by Penal Law §10.00(9).The court dismissed the charges. Referring to Matter of Philip A. and First Department appellate rulings, it concluded, as a matter of law, that the paucity of evidence concerning the complainant’s physical pain or impairment of his physical condition constituted legally insufficient evidence of his physical injury.

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