The defendant, Paul Smith, is charged with assault third degree, a class A misdemeanor in violation of Penal Law § 120.00(1) and endangering the welfare of a child, a class A misdemeanor in violation of Penal Law § 260.10(1). Defendant moves, by motion filed on June 1, 2011 through his attorney, Tina Sodhi, Esq., for Omnibus relief. The People have responded through the affirmation in opposition of Melinda B. Seiden, Esq. The matter now comes before the Court for a decision.

An information is sufficient on its face when it (1) substantially conforms to the requirements [*2]of CPL § 100.15, (2) sets forth allegations which "provide reasonable cause to believe the defendant committed the offense charged" and (3) contains non-hearsay allegations which "establish, if true, every element of the offense charged and the defendant's commission thereof." CPL §100.40(1); People v. Alejandro, 70 NY2d 133 (1987). This third requirement is also known as the " prima facie case" requirement. The Alejandro Court further held that failure to comply with the prima facie case requirement is a jurisdictional defect.

The Court notes that "the prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson, 92 NY2d 677, 677 (1999). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 354-355 (2000).

The State of New York defines assault in the third degree as:

With intent to cause physical injury to another person, he causes such injury to suchperson or to a third person; or [h]e recklessly causes physical injury to anotherperson; or [w]ith criminal negligence, he causes physical injury to another personby means of a deadly weapon or a dangerous instrument. Penal Law §120.00.

Pursuant to CPL §100.40, defense counsel argues that the information in this case is not sufficient because every element of the offense is not supported by non-hearsay allegations. Specifically, the defense argues that an essential element of the crime charged is the causation of physical injury. Physical injury is defined as "impairment of physical condition or substantial pain." Penal Law §10.00. While the accusatory instrument alleges " substantial pain," the supporting deposition of the victim states only "causing me pain and made me cry." The Court of Appeals has directly addressed the question of sufficiency involving the accusatory instrument in a third degree assault case. See Henderson, 92 NY2d at 679. Henderson further directs that the "Legislature [in defining 'substantial pain'] intended to set a threshold of something more than mere technical battery." Id. at 680. The Court in Henderson found that where the allegations were accepted as true, "a jury could certainly infer that the victim felt substantial pain" where the defendant "attempted to pull the victim from his motor scooter and kicked him in the legs, causing him to suffer contusions and swelling." Id.

In finding that the victim felt substantial pain, the trier of fact may infer that the pain caused [*3]was substantial even without the testimony of the victim. People v. Rojas, 61 NY2d 726, 727 (1984). In People v. Santos, the First Department found the evidence sufficient to infer substantial pain from the crying of a baby (289 AD2d 68 [1st Dep't 2001]). There was no testimony given, just a bruise and crying. The defense argues here that the language in the victim's deposition does not match that of the statute. It is unlikely, however, that an eight year-old child would utilize statutorily concise language like "substantial pain" or "impairment of physical condition."

If the trier of fact can infer substantial pain without testimony (Rojas, 61 NY2d at 727), the short testimony of the victim, viewed objectively, only bolsters the argument in favor of a finding of substantial pain. Although only eight years-old, in two sentences the victim identified the offender, the motive, the intent, the type of blow, the location of the blow, and the injury. The competency of this victim cannot be questioned, to do so would lend credence to a stronger argument in favor of physical impairment in addition to substantial pain.

The Appellate Divisions are inconsistent as to what language determines subjectively that substantial pain was suffered. The Third Department has accepted testimony much less descriptive in finding substantial pain, holding that the language "quite sore" coupled with bruising amounted to substantial pain (People v. Ellis, 8 AD3d 826 [3d Dep't 2004]). The Second Department has, as cited by the defense, found similar language in People v. Tabachnik (131 AD2d 611 [2nd Dep't 1987]) not to be enough to substantiate substantial pain. This court will not choose sides on descriptive language. Instead, this court agrees with People v. Chiddick that the pain suffered must be more than "trivial" and looks to the totality of the circumstances surrounding the incident, viewed objectively. (8 NY3d 445 [2007]).

The Court of Appeals has determined there exists both a subjective and objective element to finding physical injury through substantial pain (Matter of Philip A., 49 NY2d 198 [1980]). In Matter of Philip A. the majority stated that "petty slaps, shoves, kicks, and the like" are "insufficient to establish 'substantial pain' beyond a reasonable doubt." (Id. at 200). The Court reasoned that although pain is a "subjective matter," the "Legislature did not intend a wholly subjective criterion to govern." Id.

Concerning the objective element, this court has interpreted Matter of Philip A. to stand for the proposition that the scope of the injury must be such that a reasonable person, in like circumstances, would feel substantial pain, beyond that of "red marks" and "petty slaps." This has been articulated further through the Appellate Division's use of the language "common-sense" in finding substantial pain. (People v. Wilkens, 239 AD2d 105 [1st Dep't 1997]; People v. Tomczak, 189 AD2d 926 [3d Dep't 1993]; People v. Tompkins, 8 AD3d 901 [3d Dep't 2004]). In finding that a child suffered substantial pain, the First Department has stated that "substantial pain could be inferred through exercise of common sense, from all circumstances, including age of child and force of blows." Wilkens, 239 AD2d at 105 (emphasis added).

The victim in this case is an eight year old girl. The defendant is her 6'3", 210 lb. father (with several prior assault convictions). The eight year old girl described being "punched in [the] right eye causing me pain and making me cry." In assessing the circumstances, we must distinguish "petty slaps" as illustrated in Matter of Philip A. from a punch. A punch is a strike with a forward thrust of the fist. A punch is not a "petty slap." A punch is intended to inflict pain. The victim in our case, an eight year-old girl, was punched in the face because "[her] father got upset." The arresting officer observed a visible " one inch laceration" to the eye of the victim. This rises above the level of "trivial," and this court can reasonably infer substantial pain.

Upon review of the information herein, this Court finds that the information is sufficient on its face, pursuant to CPL §§100.15, 100.40, and that the victim felt substantial pain, pursuant to Penal Law §120.00. Accordingly, the defendant's motion to dismiss is denied.