                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 21, 2015                       105624
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

WAYNE E. HICKS,
                    Appellant.
________________________________


Calendar Date:    March 25, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

                              __________


     Michael P. Graven, Owego, for appellant.

      Gerald F. Mollen, District Attorney, Binghamton, for
respondent.

                              __________


Lynch, J.

      Appeal   from a judgment of the County Court of Broome County
(Smith, J.),   rendered October 24, 2012, upon a verdict convicting
defendant of   the crimes of assault in the second degree, assault
in the third   degree and petit larceny.

      In October 2011, two police officers, Jared Fiacco and
Joseph Kennedy, responded to a 911 call reporting a robbery in
progress at a retail store. After learning that the suspects had
just left the store, Fiacco followed defendant and his companion
through the parking lot, ordering them to stop. Instead, the men
got into a vehicle, with defendant behind the wheel. Fiacco
positioned himself in front of the vehicle, as Kennedy arrived
and stood near the driver's side door. Both officers, with guns
drawn, demanded that the men exit the vehicle. Instead, as
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described by Kennedy, "[defendant] look[ed] up at me, we actually
made eye contact" and then "he [put] the car in gear and stomped
on the gas." The vehicle struck Fiacco as the officers fired
their weapons. Defendant was shot multiple times while Fiacco
sustained a leg injury.

      Defendant was charged by indictment with two counts of
assault in the second degree and petit larceny. After a jury
trial, defendant was convicted of assault in the second degree,
assault in the third degree – as a lesser included offense of the
second count of assault in the second degree – and petit larceny.
Defendant was sentenced to an aggregate prison term of six years
followed by three years of postrelease supervision. Defendant
appeals.

      We affirm. Contrary to defendant's argument, we find that
the evidence was legally sufficient to establish that Fiacco
sustained a physical injury as an element of each assault
conviction (see Penal Law §§ 120.05 [3]; 120.00 [2]). Physical
injury, as used in the Penal Law, is defined as an "impairment of
physical condition or substantial pain" (Penal Law § 10.00 [9]).
To meet the statutory pain threshold, the pain must be "more than
slight or trivial" but need not be "severe or intense" (People v
Chiddick, 8 NY3d 445, 447 [2007]; see People v Williams, 46 AD3d
1115, 1115 [2007], lv denied 10 NY3d 818 [2008]; People v Rivera,
42 AD3d 587, 588 [2007], lv denied 9 NY3d 880 [2007]). Pertinent
factors in identifying a physical injury include "the injury
viewed objectively, the victim's subjective description of the
injury and [his or her] pain, and whether the victim sought
medical treatment" (People v Rivera, 42 AD3d at 588).

      Viewing the evidence in the light most favorable to the
People, as required for a legal sufficiency challenge (see People
v Danielson, 9 NY3d 342, 349 [2007]), the evidence establishes
that Fiacco was struck by defendant's vehicle in the right leg
below the knee and thrown to the passenger side of the vehicle.
Fiacco was able to participate in completing the arrest, but
after returning to the police station, he observed that his right
shin was "raised and red" and "extremely tender to the touch."
Later that evening, Fiacco went to the emergency room, where he
reported having difficulty walking and described the pain to the
                              -3-                105624

emergency room physician as an 8 on a scale of 1 to 10. The
physician described Fiacco's injury as a contusion, with slight
swelling, and prescribed pain medication. Fiacco testified
regarding the pain and that his difficulty walking lasted for
several days. In our view, this evidence was legally sufficient
to support the jury's finding that Fiacco suffered a physical
injury during the episode in question.

      Defendant further asserts that the weight of the evidence
fails to support either assault conviction since there was no
showing that defendant intended to cause physical injury to
Fiacco. The argument misses the mark and is without merit. The
felony assault conviction required proof that defendant intended
to prevent a police officer from performing a lawful duty, not
intent to cause physical injury to the officer (see Penal Law
§ 120.05 [3]). By acknowledging that he was attempting to flee
the scene, and without disputing the petit larceny charge, the
jury could reasonably conclude that defendant intended to prevent
the officers from effecting an arrest when he accelerated the
vehicle. For the misdemeanor assault, the People were required
to prove that defendant recklessly caused physical injury to
Fiacco, not that he intended to do so (see Penal Law § 120.00
[2]). To this end, the People were required to establish that
defendant "[was] aware of and consciously disregard[ed] a
substantial and unjustifiable risk" that was of "such nature and
degree that disregard thereof constitutes a gross deviation from
the standard of conduct that a reasonable person would observe in
the situation" (Penal Law § 15.05 [4]). Both officers and a
bystander testified that Fiacco stood directly in front of and
within a few feet of defendant's vehicle when defendant
accelerated the vehicle striking him. Moreover, forensic
testimony was introduced showing that portions of the bumper and
hood were clean, consistent with Fiacco's testimony that he
placed his hand on the hood and fell to the passenger side as the
vehicle drove forward. Although defendant maintains that the
evidence shows that he did not strike Fiacco with his vehicle and
that he was attempting to avoid the officers by driving to the
left, we conclude that the weight of the evidence supports the
jury's determination that defendant acted recklessly (see People
v Powell, 101 AD3d 1369, 1370 [2012], lv denied 21 NY3d 1019
[2013]; People v Heier, 90 AD3d 1336, 1338 [2011], lv denied 18
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NY3d 994 [2012]; People v Van Guilder, 29 AD3d 1226, 1228
[2006]).

      Finally, defendant's assertion that the sentence is harsh
and excessive is unpersuasive. The sentence imposed was within
the statutory range and, given the flagrant circumstances of this
case, coupled with defendant's extensive criminal history, we
find no convincing basis to disturb the sentence (see People v
McCray, 96 AD3d 1160, 1161-1162 [2012], lv denied 19 NY3d 1104
[2012]; People v Williams, 89 AD3d 1222, 1224 [2011], lv denied
18 NY3d 887 [2012]).

     Lahtinen, J.P., McCarthy and Garry, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
