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People v. Williams

147 A.D.2d 960 Court N.Y. App. Div. Decision date 1989-02-03 English

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p. 960
The People of the State of New York, Respondent, v Kenneth Williams, Appellant.

— Judgment unanimously affirmed. Memorandum: Defendant, an inmate at Auburn Correctional Facility, was convicted of assault in the second degree (Penal Law § 120.05 [3], [7]), arising from an altercation with correction officers. On appeal, defendant claims that proof of "physical injury” (Penal Law § 10.00 [9]; § 120.05) was legally insufficient to support the jury’s verdict. We disagree.

Defendant bit Officer Smith on the left thumb, causing a one-inch laceration about a quarter of an inch deep. The officer testified that it hurt "real bad” and that he felt "ex

p. 961
treme pain.” The wound was treated at the facility and at a hospital emergency room and later became infected, requiring treatment with antibiotics. A physician who examined Smith two days after the incident indicated that Smith continued to experience pain on that date and that the injury prevented him from performing his regular duties. Sergeant Napoli suffered a twisted and sprained knee, which also required hospital treatment. Napoli experienced "heavy” and "throbbing” pain and swelling, which did not subside for some four or five days. Napoli was out of work for a week. The injury sustained by each officer was sufficient to sustain the assault charges (see, People v Rojas, 61 NY2d 726 ; People v Fasano, 112 AD2d 791 ; People v Starling, 101 AD2d 704 ; People v Fife, 39 AD2d 780 ; People v Ayala, 107 Misc 2d 874 ).

Defendant was sentenced as a second felony offender to concurrent imprisonment terms of SVi to 7 years. The circumstances of the crimes and defendant’s criminal history supported imposition of the maximum term, and defendant’s claim that the sentences were harsh and excessive is without merit. (Appeal from judgment of Cayuga County Court, Contiguglia, J. — assault, second degree.) Present — Dillon, P. J., Boomer, Balió, Lawton and Davis, JJ.

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