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People v. Fasano

112 A.D.2d 791 Court N.Y. App. Div. Decision date 1985-07-12 English

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p. 791
The People of the State of New York, Appellant, v Michael Fasano, Respondent.

Order unanimously reversed, on the law, and verdict reinstated. Memorandum: We agree with the People that Trial Term erred in setting aside the jury’s verdict finding defendant guilty of assault, second degree (Penal Law § 120.05 [6]), on the ground that the evidence of physical injury (Penal Law § 10.00 [9]) was insufficient as a matter of law to support the verdict. The victim testified that defendant grabbed her by the neck from behind and dragged her to a parking lot, causing her to fall to the ground. When she got up, he grabbed her by the arm and punched her in the face. She testified that as a result of her fall her hand was "bruised and swollen” and "it hurt”. As a result of the punch

p. 792
in the face, her face "was bruised and swelled * * * There was pain.” She was treated at a hospital and X rays were taken. She took mild medication for the pain. A witness who assisted the victim as she ran from her attacker testified that her face "was swollen. It discolored. The eye was shutting.” The hospital record stated that the victim suffered pain in the jaw, cheekbone, wrist, and hand and that there was swelling on the bridge of her nose, on her cheek, and around her eyes. We conclude that the evidence of physical injury was sufficient to raise a question of fact for the jury’s determination (see generally, People v Rojas, 61 NY2d 726 ; People v Bramble, 103 AD2d 1019 ; People v Starling, 101 AD2d 704 ; People v Coward, 100 AD2d 628 ; People v Chesebro, 94 AD2d 897 ; People v Harris, 92 AD2d 738 ; cf. People v Jimenez, 55 NY2d 895 ; Matter of Philip A., 49 NY2d 198 ). (Appeal from order of Supreme Court, Onondaga County, Gorman, J. — trial order of dismissal.) Present — Dillon, P. J., Hancock, Jr., Denman, Green and Pine, JJ.

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