        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

681
KA 07-02340
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CAMILLO DOUGLAS, DEFENDANT-APPELLANT.


MICHAEL G. CONROY, KENMORE, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered September 27, 2007. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree (three
counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of three counts of assault in the second degree
(Penal Law § 120.05 [3]). The conviction arises from an incident in
which four correction officers attempted to restrain defendant in
order to conduct a “strip frisk” for suspected contraband and three of
those officers sustained injuries. By failing to renew his motion for
a trial order of dismissal after presenting evidence, defendant failed
to preserve for our review his contention that the evidence is legally
insufficient to establish that each of the victims sustained a
physical injury (see People v Hines, 97 NY2d 56, 61, rearg denied 97
NY2d 678). In any event, we conclude that defendant’s contention is
without merit. The evidence, which included testimony from the
respective treating orthopedic surgeons of two of the victims and the
treating chiropractor of the third victim, established that each of
the victims required medical treatment for his injuries. One of the
victims continued treatment for an injured elbow for more than two
years following the incident, and another victim required arthroscopic
surgery to repair the damage to his knee that resulted from the
incident. The third victim’s treating chiropractor testified that the
injury sustained by that victim as a result of the incident “greatly
exacerbated” his preexisting lower back injury. We note that the
victims each were on medical leave for several weeks following the
incident. We therefore conclude that the evidence established that
each of the victims sustained a physical injury within the meaning of
Penal Law § 10.00 (9), i.e., impairment of a physical condition or
                                 -2-                          681
                                                        KA 07-02340

substantial pain (see People v Bowen, 17 AD3d 1054, 1055-1056, lv
denied 5 NY3d 759; People v Liggins, 2 AD3d 1325, 1326; cf. People v
Velasquez, 202 AD2d 1037, lv denied 83 NY2d 1008, 84 NY2d 940), and
thus that the conviction is supported by legally sufficient evidence
(see generally People v Bleakley, 69 NY2d 490, 495). The sentence is
not unduly harsh or severe.




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
