Defendant-Appellant (hereinafter, "Defendant") appeals his June 17, 2013, conviction after a bench trial (Town of Neversink Justice Court, Hon. Keith Zanetti) of Assault in the Third Degree.^[FN1] Defendant waived his right to a presentence investigation report (hereinafter, "PSI"). On August 20, 2013, Judge Zanetti sentenced Defendant to a conditional discharge of one year, surcharge, completion of anger management evaluation, and to provide the Court with a bi-monthly report if anger management classes were recommended. A mandatory DNA sample was ordered plus the $50.00 fee. This Court previously ordered a stay of the imposition of the sentence pending the outcome of this appeal.

Defendant has submitted a notice of argument, appellate brief and record on appeal. The People have submitted a Respondent's brief. This appeal is on submission. There was no oral argument.

FACTUAL & PROCEDURAL BACKGROUND

This case involves the Defendant, father of the then 17-year-old victim, striking her in the face during a verbal and physical altercation with her and her teenaged boyfriend. That is the only fact upon which the victim, Defendant and the witnesses agree. [*2]

According to Defendant's testimony and submissions, the incident occurred as follows: On the evening of September 27, 2012, Defendant became aware that his 17-year-old daughter was probably having a sexual relationship with her teenaged boyfriend, Joseph Wallace (hereinafter, "Mr. Wallace"). Mr. Wallace's mother (hereinafter, "Ms. Monforte") had gone to Defendant's home, looking for her son and the victim, and while there, told Defendant about the sexual relationship, and that the children had been disrespectful to her, having had sexual relations in her house. Defendant then went to Tri Valley High School to find his daughter ^[FN2] to discuss his concerns about her sexual relationship with Mr. Wallace. Upon finding the pair walking toward the sports field, Defendant ordered the victim to get into his vehicle. The victim complied. Defendant then testified that he stated to Mr. Wallace "Stay away from my daughter. It's over. You got it?"

At that point, Defendant testified at trial that his daughter said to him, "This is bullshit, you motherfucker," and jumped out of the vehicle. Defendant testified that the victim seemed angry, but was not crying at the time. Defendant parked his vehicle and pursued the victim on foot, and upon catching up to her and Mr. Wallace, he claims he grabbed her arm and said "Let's go. You're going home." According to Defendant, the victim started flailing her arms, again called him a "mother fucker," and threatened to have him arrested if he touched her again. The victim broke free from Defendant's hold on her forearm and as she continued to walk away, Defendant grabbed at the back of her shirt, grabbing both the shirt and her hair. Once again, the victim yelled and cursed at her father and called him a "piece of shit," while wildly flailing her arms in both directions. Defendant testified that the victim struck him several times in the arms, and when he raised his hand and arm to block additional blows from the victim, he accidentally struck the victim in her face. Defendant maintains the strike was accidental and with an open hand. Defendant claims the victim started screaming that he punched her in the face, at which point he indicated to her that he did not, and told her "Let's go. We're going home."

Defendant further testified that upon hearing the victim screaming about being punched in the face, Mr. Wallace then screamed to his mother that Defendant had punched the victim in the face. While Mr. Wallace was yelling, Defendant grabbed the victim by the shoulders, and then Mr. Wallace grabbed Defendant from behind and grabbed his nose. Defendant testified that he released his hold on the victim and turned around to Mr. Wallace. Defendant admitted during testimony that he did swing at Mr. Wallace in an attempt to defend himself. The physical altercation continued, with Defendant and Mr. Wallace grabbing at the victim. By that point, other people started to approach the disturbance, including a member of the local volunteer ambulance crew, which was there for the soccer game. Although Defendant indicated his daughter did not need medical attention, the victim went to the ambulance that was on site and was transported to Catskill Regional Hospital. [*3]

According to the victim's testimony, she and Mr. Wallace were at the high school that evening to watch a soccer game. She testified that while she and Mr. Wallace were walking toward the sports field, Defendant called out to her from his vehicle and commanded her to get into the vehicle. The victim testified that Defendant was yelling at her and was angry, and that she was confused, because she did not know why Defendant was looking for her or why he was angry. Nevertheless, she got into the vehicle as directed by her father. The victim testified that as Defendant was turning the vehicle around to leave the area, he yelled out to Mr. Wallace, "Stay the fuck away from my daughter," and was cursing and yelling at him. At that point, the victim indicates she became "rebellious and mad and angry" and started to cry. She then exited the vehicle and started to walk away. The victim stated in her testimony that Defendant came up behind her and grabbed her hair. The victim was unclear about what happened next, because she was not facing Defendant or Mr. Wallace at that point, but she testified that Mr. Wallace grabbed her father and at some point she was "being tossed between Joey and my father." According to the victim's testimony, Defendant took a swing at Mr. Wallace, with a closed fist, and missed. Defendant and Mr. Wallace continued to pull at the victim, and then, according to the victim, Defendant took another swing at Mr. Wallace with a closed fist, missing Mr. Wallace and instead striking her on the left side of her face. The victim indicated that upon impact, the affected area "stung," "burned," and "hurt," and that she "felt really, really dizzy." During her cross-examination, the victim admitted to using profanity toward her father when she exited his vehicle.

The victim testified that she was escorted to a nearby ambulance that was at the field for the soccer event, and was transported to the hospital. She testified that she was in pain at the hospital, felt dizzy, and that everything was "blurry" in her head. According to the victim and the record on appeal, the attending physician at the emergency room at Catskill Regional Hospital prescribed non-narcotic Ibuprofen 800 mg tablets, four times per day, for two weeks. The victim testified that over the two week period, her pain went from seven to three on a scale of one to 10, 10 being the worst. She also testified that for the two weeks following the incident it was hard to chew and it hurt to sleep on the left side of her face. The record and testimony indicate the victim's face was red and swollen after the incident.

Mr. Wallace and Ms. Monforte also testified at the trial for the People. Although there are some inconsistencies between their testimony and that of the victim, their testimony largely corroborates the victim's version of events and they both testified that the victim was bleeding from her mouth after being struck. They both accompanied the victim to the hospital emergency room and Ms. Monforte took the victim back to her house when she was released.

Within several days of the incident, the victim filed a family offense petition in Sullivan County Family Court. She has not returned to live at her parents' home; she lived with Mr. Wallace and his mother for several months, and now lives with a relative. [*4]

DEFENDANT'S ARGUMENTS ON APPEAL

Defendant raises two arguments on appeal: (1) the verdict was based on legally insufficient evidence, and (2) the verdict was against the weight of the evidence.

1. Sufficiency of Evidence

Appellate review of the legal sufficiency of the evidence requires a court to consider whether, "after viewing the evidence in the light most favorable to the prosecution," People v. Khan, 18 NY3d 535, 541 [2012], and "indulging in all reasonable inferences in the People's favor," People v. Bueno, 18 NY3d 160, 169 [2011], "any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt." People v. Khan, 18 NY3d at 541.

To prove a defendant is guilty of Assault in the Third Degree, the People must prove one of the following:

1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument. PL §120.00

In People v. Chiddick, 8 NY3d 445 [2007], the Court of Appeals acknowledged that substantial pain "cannot be defined precisely," but listed four factors to be considered when determining whether a victim experienced substantial pain. Id., at 447. In determining whether there was legally sufficient evidence to support a guilty verdict of assault, a court must consider (1) the nature of the injury, (2) the victim's description of the injury and level of pain and discomfort, (3) whether the victim sought medical attention, and (4) the motive of the defendant. Id. In addition, the Court of appeals stated that the legislative history of the Penal Law, in the section defining assault, states that " petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives' constitute only harassment." Id., at 448; see also People v. Carte, 113 AD3d 191 [3rd Dept. 2013] People v. Boyd, 97 AD3d 898 [3rd Dept. 2012]. [*5]

In People v. Carte, supra, the Third Appellate Division held there was legally sufficient evidence to establish substantial pain and therefore physical injury where the victim had observable marks on her body, loudly complained of pain, and was treated at a hospital emergency room. Id., at 194. Likewise, the court held there was legally sufficient evidence to prove substantial pain and therefore physical injury where an assault victim had swelling and redness to his eye, indicated his eye felt tender for about a week and a half after the incident, and that he suffered recurring headaches and felt sharp pain when he looked at light. People v. Boyd, supra, at 898-899. The Boyd Court further stated that

Despite the victim's characterization of the resulting pain during the week following the incident as "mild," it was within the province of the jury to conclude, based upon the victim's other descriptions of his injury and the documentary evidence, that defendant's blows brought more than "slight or trivial pain." Id., at 899.

In the case at bar, there was legally sufficient evidence to establish that the victim suffered a physical injury resulting from substantial pain. The record from the emergency room indicates the victim was treated for a "contusion" (bruising) and was prescribed Ibuprofen (MOTRIN) 800 mg tablets, every six hours, for two weeks for pain. People v. Carte, supra. The victim and two witnesses testified that Defendant struck the victim with a closed fist. The victim testified that her face "stung," "burned," and "hurt," and that she "felt really, really dizzy" immediately after being struck in the face. People v. Boyd, supra. She also stated that for the two weeks following the incident it was hard to chew and it hurt to sleep on the left side of her face, which was corroborated by Mr. Wallace's testimony of his direct observation of the victim during that period of time. Id. The record and testimony indicate the victim's face was red and swollen after the incident.

The only person to testify that Defendant's motive in raising his hand was to deflect the victim's failing arms and blows was Defendant. The victim and two witnesses testified that Defendant accidentally struck the victim when he was intentionally trying to strike Mr. Wallace; Defendant admitted under oath that he swung at Mr. Wallace, albeit it in self-defense. Whether Defendant recklessly struck the victim with an open fist while deflecting her arms [PL §120.00(2)], or accidentally struck her when trying to intentionally strike Mr. Wallace [PL §120.00(1), (2)] is of no consequence to whether there was legally sufficient evidence to support the charge of assault; either way, Defendant's action of swinging his arm during the altercation and hitting the victim in the face, causing an injury, satisfies the requirements of the statute. Therefore, this Court holds there was legally sufficient evidence to support the guilty verdict for Assault in the Third Degree.

2. Weight of the Evidence

Regarding the weight of the evidence: in New York, an intermediate appellate court has the unique authority to review lower court decisions on both the law and the facts. People v. [*6]Bleakley, 69 NY2d 490 [1987].

Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony." [Citations omitted]

Weight of the evidence review "requires a court first to determine whether an acquittal would not have been unreasonable." People v. Bailey, 94 AD3d 904, 905 [2nd Dept. 2012]. If a court makes such a determination, then, and only then, does it embark on weighing conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of conclusions. Id. Based on the weight of the evidence, the reviewing court then decides if the jury was justified in finding the defendant guilty. Id., see also, People v. Danielson, 9 NY3d 342 [2007].

As a threshold matter, this Court has determined that an acquittal in this case would not have been unreasonable under the evidence submitted, and therefore, will embark on weighing the conflicting testimony and other evidence. People v. Bailey, supra. Although this Court holds that the verdict was based upon legally sufficient evidence, it still has the discretion to examine whether the verdict was against the weight of the evidence. See People v. Danielson, 9 NY3d 342 [2007].

In addition, although the accusatory instrument does not specify the statutory subsection for whether Defendant was charged with intentional assault in the third degree [PL §120.00(1)] or reckless assault in the third degree [PL §120.00(2)], and Judge Zanetti's decision from the bench refers generally to assault in the third degree, the accusatory instrument, in the Accusation section, states that Defendant "did intentionally, knowingly and unlawfully commit the misdemeanor of Assault-3rd Degree...." Moreover, Defendant's Statement Pursuant to CPLR 5531 at paragraph 5 refers to PL §120.00(1) as does the Appellant's brief at page 11. The People's brief refers to PL §120.00(1) at page 11, paragraph 2. Therefore, this Court will review Defendant's weight of the evidence argument in the context of PL §120.00(1). [*7]

Defendant, herein, claims the verdict was against the weight of the evidence because the credible evidence established that Defendant was justified in using physical force to bring the victim, his daughter, home with him. Penal Law §35.10(1) states in pertinent part,

The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:

1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person. PL §35.10(1).

The courts have upheld the parental right to use physical force against a child to maintain discipline or promote the welfare of the child. See generally In the Matter of Padmine M., 84 AD3d 806 [2nd Dept. 2011] Anthony J. v. David K., 70 AD3d 1220 [3rd Dept. 2010] People v. Kearns, 56 AD3d 1047 [3rd Dept. 2008] People v. Franklin, 79 AD2d 611 [2nd Dept. 1980]. In determining whether such use of force was reasonable, a court must consider " whether a reasonable person in the same position as [the parent]...would have believed that such force was necessary.'" People v. Kearns, 56 AD3d at 1049. The physical force cannot be for any purpose other than discipline. Anthony J. v. David K., 70 AD3d at 1221.

Defendant, herein, testified that he went to the high school to find his daughter and bring her home to discuss her behavior with her boyfriend after the boyfriend's mother informed Defendant that the two were having sexual relations in her house and were disrespectful. Defendant testified that he was concerned his daughter might have been having unprotected sex. This Court finds that Defendant's decision to find his daughter and bring her home was well within his discretion as a parent. Whether the victim was legally able to consent to having sexual intercourse, a point raised by the People, is irrelevant as to whether Defendant had the right to reasonably discipline and direct the conduct of his minor daughter, who was still under 18 years of age at the time, and living in his household. Penal Law §35.10(1).

Upon finding the victim, Defendant then ordered her into his vehicle. The Court also finds that as the 17-year-old victim's father, Defendant had the right to order her to go home with him and to get into his vehicle for that purpose. People v. Kearns, supra.The victim then used profanity toward her father and exited the vehicle after he told her boyfriend to stay away from her—whether Defendant yelled at Mr. Wallace, cursed at Mr. Wallace, or spoke to him in a conversational tone is not relevant to whether Defendant maintained the parental right to reasonably discipline his daughter and keep her in his vehicle to take her home to discuss her sexual activity. [*8]

Unfortunately, however, the situation quickly escalated from that point when the victim used profanity toward her father, exited the vehicle, and walked off; instead of waiting for the police, who Defendant had already called, or allowing the situation to calm down, Defendant followed the victim on foot and grabbed her.

Under the circumstances of this case, considering the age of the victim (she is not a small or young child), and the fact that there was no present and immediate danger to the victim, this Court finds that Defendant's use of force in his parental capacity was unreasonable. People v. Kearns, supra. Although Defendant was concerned about the welfare of his daughter, Matter of Padmine M., supra, this Court finds that a reasonable person in the same position would not have grabbed the 17-year-old victim's hair and shirt and then allowed the altercation to escalate to the point of either deflecting the victim's flailing arms or intentionally trying to strike Mr. Wallace, resulting in Defendant's hand or fist striking the victim in her face and causing injury. Anthony J. v. David K., supra. The record does not support Defendant's argument that his actions were solely for the purpose of disciplining his daughter or to promote her welfare, safety or well-being. PL §35.10(1); Anthony J. v. David K., supra; People v. Kearns, supra.

The record establishes that Defendant was upset when he initially caught up with the victim and ordered her into his vehicle, and that he became very angry and upset when she used profanity toward him and defiantly exited the vehicle. While this court recognizes Defendant's right as a parent to make further attempts to take his minor daughter home, the record does not support his position that the use of force by grabbing her clothing and hair, and then continuing to grab at her and wind up in a physical altercation with her and the teenaged boyfriend was reasonable and in accord with the statutory scheme of Penal Law §35.10(1). Under the circumstances of this case, the record supports the victim's and witnesses' testimony that Defendant's grabbing the victim's clothing and hair to take her back to the vehicle was motivated by anger, rather than a parental desire to discipline a child or the need to remove a child to further her welfare and safety. In addition, regardless of how Defendant struck the victim in the face, he remained in a physical altercation with two teenagers under the age of 18, which could have been avoided, and which put his child's welfare and safety at risk, contrary to the purpose for which he claims he continued to try to take her home. Therefore, this Court rejects Defendant's argument that the wight of the evidence did not support the guilty verdict under this theory.

Based on the foregoing, it is therefore

ORDERED that Defendant's appeal is denied in its entirety and dismissed.

This shall constitute the Decision and Order of this Court.

DATED:May 12, 2014

Monticello, New York

Hon. Frank J. LaBuda

Sullivan County Court Judge and Surrogate