SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

631 

KA 11-00486 

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

KENT D. SPRATLEY, DEFENDANT-APPELLANT. 

 

CHRISTOPHER JUDE PELLI, UTICA, FOR DEFENDANT-APPELLANT. 

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Barry M.

Donalty, J.), rendered November 17, 2010. The judgment convicted

defendant, after a nonjury trial, of assault in the second degree. 

It is hereby ORDERED that the case is held, the decision is

reserved and the matter is remitted to Oneida County Court for further

proceedings. 

Memorandum: On appeal from a judgment convicting him upon a

nonjury verdict of assault in the second degree (Penal Law § 120.05

[2]), defendant contends that the verdict is against the weight of the

evidence because any injury to the victim was not caused by a deadly

weapon and such injury did not constitute a “ ‘[p]hysical injury’ ”

within the meaning of Penal Law § 10.00 (9). Viewing the evidence in

light of the elements of the crime in this nonjury trial (see People v

Danielson, 9 NY3d 342, 349), we reject defendant’s contention (see

generally People v Bleakley, 69 NY2d 490, 495). We conclude that a

finding by County Court that the victim’s injury was not caused by a

deadly weapon would have been unreasonable (see generally Danielson, 9

NY3d at 348; Bleakley, 69 NY2d at 495). 

With respect to the element of physical injury, we note that 

“ ‘[p]hysical injury’ ” is defined as “impairment of physical

condition or substantial pain” (Penal Law § 10.00 [9]). Substantial

pain means “more than slight or trivial pain[, but it] need not . . .

be severe or intense to be substantial” (People v Chiddick, 8 NY3d

445, 447). “A variety of factors are relevant in determining whether

physical injury has been established, including ‘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 Dixon, 62 AD3d 1036, 1039, lv denied 12 NY3d 912, 914; see

Chiddick, 8 NY3d at 447-448).
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KA 11-00486 

Here, the victim was injured by a bullet that grazed his face,

“an experience that would normally be expected to bring with it more

than a little pain” (Chiddick, 8 NY3d at 447). He went to the

hospital for treatment of his injury and received several stitches. 

The victim testified that he was in “excruciating pain” at the

hospital and that he still has pain, as well as difficulty eating and

talking. The hospital records admitted in evidence, however,

demonstrated that the victim described his pain as “zero” out of 10

and that he was not prescribed any pain medication. We conclude that,

although an acquittal based on the lack of a physical injury would not

have been unreasonable, it cannot be said that the court failed to

give the evidence the weight it should be accorded (see People v

Dove, 86 AD3d 715, 717, lv denied 17 NY3d 903, 18 NY3d 882; People v

Moye, 81 AD3d 408, 408-409, lv denied 16 NY3d 861; see also People v

Slater, 13 AD3d 732, 734, lv denied 4 NY3d 803; see generally

Danielson, 9 NY3d at 348-349; Bleakley, 69 NY2d at 495).

As defendant correctly notes, the court failed to rule on his

renewed motion to dismiss the indictment based on allegedly

prejudicial conduct during the grand jury proceeding. Contrary to the

People’s contention, pursuant to People v Concepcion (17 NY3d 192,

197-198) and People v LaFontaine (92 NY2d 470, 474, rearg denied 93

NY2d 849), we cannot deem the court’s failure to rule on the renewed

motion as a denial thereof (see People v Chattley, 89 AD3d 1557,

1558). We therefore hold the case, reserve decision and remit the

matter to County Court for a ruling on defendant’s renewed motion to

dismiss the indictment. 

Entered: June 8, 2012 Frances E. Cafarell

Clerk of the Court