Majority
p. 648The People of the State of New York, Respondent, v Janine Adams, Appellant. [765 NYS2d 630]
Judgment, Supreme Court, New York County (Herbert Altman, J.), rendered March 14, 2002, convicting defendant, after a jury trial, of robbery in the second degree and bail jumping in the second degree, and sentencing her, as a persistent violent felony offender, to consecutive terms of 16 years to life and IV2 to 3 years, respectively, unanimously modified, on the law and the facts, to the extent of reducing the conviction of robbery in the second degree to robbery in the third degree and remanding for resentencing on that conviction, and otherwise affirmed.
p. 649
The People do not contend that the drug store’s security guard suffered any impairment of his physical condition. Nor, despite evidence that defendant, whom he caught shoplifting, bit and scratched him in an attempt to flee and the guard’s subjective testimony of pain, is there evidence sufficient to establish that he suffered “substantial pain” beyond a reasonable doubt. (Penal Law § 10.00 [9].) Accordingly, the evidence of physical injury, an element of robbery in the second degree, was insufficient as a matter of law. Furthermore, with respect to the element of physical injury, the verdict was against the weight of the evidence.
We have considered defendant’s other points and find them without merit. Concur — Nardelli, J.P., Mazzarelli, Andrias, Marlow and Gonzalez, JJ.