The defendant was charged with two counts of Assault in the

Third Degree, to wit: Intentional Assault, Penal Law Section 120.00(1) and Reckless Assault,

Penal Law Section 120.00(2). It was alleged that on September 12, 2004 at the Maple Tree Inn at

41 Kittleberger Park in the Town of Webster, the defendant did strike from behind a Lisa M.

Williams in the back of the head, then grabbed her arms and hands when she tried to protect

herself. It is further alleged that during the course of the struggle the defendant did cause

physical injury to the complainant's right ring finger, including swelling and bruising to both said

finger and the left wrist and forearm, which caused her said complainant to seek medical

attention, including the splinting of her right ring finger.

The defendant was issued an appearance ticket by the Webster Police Department

and was directed to appear for arraignment on the charges. On October 6, 2004, the defendant [*2]

appeared without an attorney and was arraigned on the charges. The Public Defender's Office

was eventually assigned to represent the defendant, and appeared with the defendant on

November 13, 2004. The matter was eventually adjourned for argument of motions on January

5, 2005. On that date the case was set down for a bench trial on May 27, 2005, on which date

the trial commenced.

Facts of the Case.

The people presented four witnesses as follows: Officer Michael Scott, the complainant

Lisa Williams, Michelle M. Lezo and Gregory J. Tesch. The People did not present any medical

records as part of their case.

Officer Michael Scott testified that he spoke to the complainant on September 14, 2005,

which was two days after the incident in question. The conversation took place at the residence

of the complainant. Officer Scott, an eighteen year veteran of the Webster Police Department,

observed some bruises on the complainant's left arm. As a result of said conversation, he

prepared the complaint filed in this matter.

Lisa Williams then testified, that on September 12, 2005, she was at the Maple Tree Inn

after having attended a function at the Webster Elks Club, wherein baseball style hats were

given out. The defendant and his father were also at that event. At about 6:30 P.M. she was

talking to a friend when she felt someone grab her hat from behind. She testified that the

defendant indicated that the hat belonged to his father. She indicated that when she reached

behind her head with her right hand, the defendant grabbed her hand and said she felt it being

crushed. She indicated that as a result she felt pain in that hand. She then testified to having

asked the defendant "Why did you break my finger." After that she told the defendant that the [*3]

hat did not belong to his father.

The complainant testified that she did not obtain medical attention till the next day. She

indicated that she waited till the next day to contact her doctor, because she did not aware of the

severity of the injury. She also indicated that she did not call the police that day, because she

wanted the defendant to apologize. As of the date of the trial, complainant stated that she had

visited the doctor more than thirty time because of the injury in question. She testified to having

her ring finger fractured in three places and that the two fingers next to her right ring finger were

crushed resulting in severe bruises. Ms. Williams testified to be awaiting surgery and a nerve

test. Lastly, the complainant testified to having incurred nerve damage.

On cross examination, the complainant testified that she told the defendant at the time of

incident, that she would call the police. However, she further testified that she did not call the

police till the next day, namely September13, 2004. When asked why she did not call the police

on the day of the incident in question, she stated that she "was in too much pain to call the

police".

Michelle M. Lezo then testified stating that she was a patron at the Maple Tree Inn at the

time of the confrontation between the complainant and defendant. She indicated that she saw

the defendant approach the complainant and saw the defendant hit Ms. Williams on the back of

her neck or back of her head. She then heard Ms. Williams shout "Oh my God, you broke my

finger." She observed the defendant holding the complainant's right forearm. On cross-

examination, Ms. Lezo testifed to hearing Ms. Williams cursing as a result of the incident.

The final witness called by the people, Gregory J. Tesch then testified. He also indicated

that he was at the Maple Tree Inn at 6:00 P.M. on September 12, 2005. He testified to observing [*4]

a "wrestling match" between the defendant and the complainant over a hat. He then stated that

he heard the complainant say "My finger's broken". He testified that he was three to five

feet from the defendant and complainant. He said he saw the defendant grab the hat on the

complainant's head. He then stated he heard the complainant state "You broke my f...ing finger".

He also stated that he observed a bone bulging out of the complainant's finger and various

bruises. On cross-examination, he admitted to being the complainant's boyfriend.

The people then rested its case. At that time defense counsel moved for a trial order

of dismissal. The court reserved decision on said motion.

The defense presented three witnesses, to wit: Esco Buff, Michelle Martz, and Ronald A.

Mack. The defendant did not testify at the trial.

Esco Buff testified that he attended the event at the Elks Club earlier in the day. At that

time he saw the complainant take a baseball cap, that was at the table which had been occupied

by the defendant and his father. Mr. Buff told the complainant that the hat belonged to the

Horn's, but she walked away with said hat anyway.

On cross-examination, the witness indicated that only those individuals who purchased

a ticket to the Elks Club raffle got a cap. He also testified that he saw the complainant take a

hat belonging to someone else as well.

The defense then called Michelle Martz to the stand. Ms. Martz testified to being a

bar maid at the Maple Tree Inn on the date and time in question. She testified to observing the

complainant arriving at the Maple Tree Inn after attending the raffle at the Elks Club. The

complainant was yelling at some lady at the bar. The witness indicated that she was forced to

tell the complainant to go outside and "cool down". She also observed the defendant pull into [*5]

the parking lot of the Maple Tree Inn. Ms. Martz stated that she saw the defendant take a hat of f

of the complainant's head. She testified that the complainant stated "He just punched me in the

back of my f...ing head." However, the witness stated that all she saw was the defendant taking

the hat off of the complainant's head. She testified that the defendant did not yank the hat of f of

the complainant's head, but instead only lifted the hat off of her head. She further testified to

observing Ms. Williams "flailing" and throw a drink at the defendant. She also observed the

complainant's boyfriend throw a beer bottle at both the witness and the defendant.

On cross examination, Ms. Martz testified to seeing the complainant come up behind the

defendant while swinging at him. She observed the defendant trying to get the complainant off

of him. She also testified to attempting to calm down the complainant.

Finally, Ronald Mack, testified for the defendant. He saw the defendant lift the hat off

of the head of the complainant. He indicated he saw no other contact. However, he observed

the complainant going "berserk" at the defendant.

Issues Presented.

Should the motion for a trial order dismissal pursuant to C.P.L Section 290.10 be granted?

If the motion for at trial order of dismissal is denied to one or both of the charges, is their proof

beyond a reasonable doubt pursuant to C.P.L. Section 70.20, relative to said charge or charges?

Legal Analysis.

A. Trial Order of Dismissal - Intentional Assault P.L. 120.00(1).

Penal Law Section 120.00(1) states that "A person is guilty of assault in the third degree

when: With intent to cause physical injury to another person, he causes such injury to such

person or to a third person." The key phrase relevant to the instance charge is "intent to cause [*6]

physical injury". Penal Law Section 15.05(1) states that "A person acts intentionally with respect

to a result or to conduct described by a statute defining an offense when his conscious objective

is to cause such result or to engage in such conduct."

C.P.L 290.10(1) and C.P.L. 370.10 require that a trial order of dismissal be granted if "...

the trial evidence is not legally sufficient to establish the offense charged or any lesser included

offense." In the instant case there is no objective proof to any degree that the defendant intended

to cause physical injury to the complainant. P.L. 15.05(1) indicates that "A person acts

intentionally with respect to a result or to conduct described by a statute defining an offense

when his conscious objective is to cause such result or to engage in such conduct."

In addition, the people did not provide any proof of any injury sustained by the

complainant, other than the testimony of the complainant and her boyfriend. The Court of

Appeals in People v. Guidice, (1994) 83 NY2d 630,636, 612 N.Y.S.2d 350,353 held that even

the "Lack of medical treatment is but a factor to consider..." In other words, a conviction for

assault is possible even if there is no evidence of medical treatment. However, in this case the

testimony of both of those interested witnesses was less than credible. Thus the combination of

their testimony and the lack of objective medical evidence render the evidence submitted to be

insufficient to establish the charge of intentional assault as defined by P.L. 120.00(1). As a

result, the defendants trial order of dismissal permitted by C.P.L. 290.10(1) is hereby granted as

to the charge of Assault in the Third Degree, pursuant to P.L. 120.00(1).

B. Decision on the Merits - Reckless Assault, Penal Law Section 120.00(2).

Penal Law Section 120.00(2) states that "A person is guilty of assault in the third degree

when: He recklessly causes physical injury to another person." Penal Law 15.05(3) states that [*7]

"A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be 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. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto."

However, before one is able to make such a determination, one must be able to decide

what action was in fact taken by the defendant. In this case, as previously indicated, the people

produced four witnesses, including the complainant and her boyfriend. Those witnesses

portrayed the defendant as the aggressor. The witnesses produced by the defense portrayed the

actions of the defendant as being benign, in that they only observed the defendant take a hat off

the head of the complainant. One defense witnesses indicated that the complainant was in

fact acting in an agitated manner, when she arrived at the Maple Tree Inn. It was also testified to

that the defendant had been at a party at the Elks Club, prior to arriving at the Maple Tree Inn,

where she was observed taking hats belonging to others. In fact, the defense witnesses painted a

picture of the complainant, while at the Maple Tree Inn, as one who was somewhat out of [*8]

control. As a result, it is not possible to determine from the witnesses exactly what happened.

Therefore, the trier of fact must rely on the credibility of the witnesses in making a determination

as the facts. Again, no independent medical evidence was presented to support the complainant's

charges.

Based on all of the above, the People failed to sustain the burden of proof as established

by C.P.L. 70.20, to wit: proof beyond a reasonable doubt, as to the charge of Reckless Assault

pursuant to P.L. 120.00(2). Therefore the court finds the defendant not guilty of that charge.

This constitutes the decision and order of this Court.

Dated: Webster, New York

June 14, 2005

E N T E R ,

___________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice