LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (TIMOTHY P. MURPHY
OF COUNSEL), FOR DEFENDANT-APPELLANT.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G.
ZICKL OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN,
from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered July 24, 2014. The judgment convicted
defendant, upon a jury verdict, of robbery in the second
hereby ORDERED that the judgment so appealed from is
On appeal from a judgment convicting him upon a jury verdict
of robbery in the second degree (Penal Law § 160.10 
[a]), defendant contends that the conviction is not supported
by legally sufficient evidence that the victim sustained a
physical injury. We reject that contention. The victim
testified that defendant grabbed her arm during the robbery
and kept "squeezing and squeezing" while
threatening to kill her. She further testified that she felt
like the bones in her arm were going to break, that the
resulting pain was "excruciating" and "like 9
to 10 to 11" on a scale of one to ten, and that her arm
was bruised afterward. We conclude that her testimony is
legally sufficient to establish that her pain was
substantial, i.e., "more than slight or trivial, "
and thus that she sustained a physical injury (People v
Chiddick, 8 N.Y.3d 445, 447; see Penal Law
§ 10.00 ; People v Henderson, 77 A.D.3d
1311, 1311, lv denied 17 N.Y.3d 953; cf. People
v Lunetta, 38 A.D.3d 1303, 1304, lv denied 8
N.Y.3d 987). Viewing the evidence in light of the elements of
the crime as charged to the jury (see People v
Danielson, 9 N.Y.3d 342, 349), we also reject
defendant's further contention that the verdict is
against the weight of the evidence on the issue of physical
injury (see generally People v Bleakley, 69 N.Y.2d
490, 495). Although the victim did not seek any medical
treatment as a result of the incident or miss any time from
work, the jury was entitled to credit her testimony
concerning the extent of the pain she experienced (see
People v Guidice, 83 N.Y.2d 630, 636; People v
Smith, 45 A.D.3d 1483, 1483, lv denied 10
N.Y.3d 771; see also People v Spratley, 96 A.D.3d
reject defendant's contention that he was denied
effective assistance of counsel by his attorney's failure
to make certain objections at trial (see generally People
v Taylor, 1 N.Y.3d 174, 176-177; People v
Benevento, 91 N.Y.2d 708, 712-714), and we conclude that
the sentence is not unduly harsh or severe.
concur except Curran, J., who dissents and votes to modify in
accordance with the following memorandum: I respectfully
dissent. In my view, the People failed to establish beyond a
reasonable doubt that the victim suffered a physical injury,
i.e., either "impairment of physical condition or
substantial pain" (Penal Law § 10.00 ), as is
required for a conviction of robbery in the second degree
under Penal Law § 160.10 (2) (a). I would therefore
modify the judgment by reducing the conviction to robbery in
the third degree (§ 160.05; see CPL 470.15 
[a]) and vacating the sentence, and I would remit the matter
to County Court for sentencing on the conviction of robbery
in the third degree (see CPL 470.20 ).
view, the majority's decision conflicts with the
decisions reached by this Court in People v Coleman
(134 A.D.3d 1555, 1556, lv denied27 N.Y.3d 963),
People v Haynes (104 A.D.3d 1142, 1143, lv
denied22 N.Y.3d 1156), and People v Lunetta
(38 A.D.3d 1303, 1304, lv denied8 N.Y.3d 987). The
majority relies on People v Chiddick (8 N.Y.3d 445,
447-448), but that reliance is misplaced. That case is
distinguishable inasmuch as the defendant in
Chiddick bit and broke the victim's finger,
thereby causing the victim to bleed. Thus, although the Court
of Appeals considered the victim's subjective pain as an
important factor, the injury defendant inflicted, viewed
objectively, was "[p]erhaps [the] most important
[factor]" (Chiddick, 8 N.Y.3d at 447).
Moreover, unlike here, the victim in Chiddick
"sought medical treatment for the wound defendant
inflicted-an indication that his pain was significant"
(id.). Finally, the Court in Chiddick noted
that "the whole point of the bite was to inflict as much
pain as [defendant] could" (id. at ...