People v Mercado
2012 NY Slip Op 02609 [94 AD3d 502]
April 10, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 23, 2012

The People of the State of New York, Respondent,
Samuel Mercado, Appellant.

[*1] Steven Banks, The Legal Aid Society, New York (Lawrence T. Hausman of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Justin J. Braun of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Cassandra Mullen, J.), rendered August 24, 2010, convicting defendant, after a jury trial, of assault in the third degree, and sentencing him to a term of six months, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence to a period of three years' probation, and otherwise affirmed.

The factual allegations contained in the misdemeanor information were sufficient to satisfy the physical injury element of assault in the third degree. The information recited that "defendant struck informant . . . on his face with a closed fist," and that "as a result of defendant's actions, he suffered swelling and bruising to the left side of his face and bruising and swelling to his left eye as well as experienced annoyance, alarm and fear for his physical safety."

These allegations were sufficient to warrant the conclusion that the victim suffered substantial pain. As in People v Henderson (92 NY2d 677 [1999]), based on the allegations, "a jury could certainly infer that the victim felt substantial pain" (id. at 680). We note that "substantial pain" (Penal Law § 10.00 [9]) simply means "more than slight or trivial pain" (People v Chiddick, 8 NY3d 445, 447 [2007]).

We find the sentence excessive to the extent indicated. Concur—Andrias, J.P., Friedman, Acosta, Freedman and Richter, JJ.