May 31, 2013


It is not unusual to hear about children reporting their parents to the police for abuse after being physically punished. But there is a difference between a beating and a spanking. In criminal cases, the distinction makes a critical differ...ence. In a recent case, People v. Perez, the criminal complaint alleged that the defendant "grabbed [the child], pushed her and punched her in the back, causing her substantial pain." No allegations of bleeding, black and blue, or mark of any kind were made. The Defendant was charged with Assault in the Second Degree, Endangering the Welfare of a Child, and Harassment in the Second Degree. The court held that the mere statement that the victim suffered substantial pain, without more, does not establish that he caused physical injury.

Cases where facts were insufficient to establish substantial pain:

In the Matter of Philip A, 49 NY2d 198 (1980), defendant twice hit the complainant in the face, causing him to cry, his face to feel like bumps were coming on it though none did, causing red marks on his face, and causing him pain.

People v McDowell, 28 NY2d 373, 375 (1971): incidental reference to a black eye without any development of its appearance, seriousness, accompanying swelling or suggestion of pain was insufficient" to establish substantial pain.

People v Jiminez, 55 NY2d 895, 896 (1982): evidence that the victim suffered a one centimeter cut above her lip.

Cases where facts were sufficient to establish substantial pain:
People v Chiddick, 8 NY3d 445, 447 (2007): during a scuffle in which the defendant was trying to escape the victim's hold, the defendant bit the victim on the finger hard enough to crack his fingernail and make his finger bleed, causing the victim to feel moderate pain and requiring him to receive a tetanus shot and a bandage at a hospital.

People v Giudice, 83 NY2d 630, 636 (1994): the victim was struck with a baseball bat, resulting in discoloration, swelling and lost sensation to his arm.

People v Rojas, 61 NY2d 726 (1984): the victim sustained a 1.5 inch laceration from a bullet wound which was redressed at a hospital the day after the incident because it was still oozing, was visible at trial, and which a doctor testified could have been painful.

People v Green, 70 NY2d 860, 862 (1987): the victim bled "all over" from lacerations on his eye and hand, had "permanent spots" on his hand at trial, wore bandages for three weeks, and experienced terrible pain as a result of being tripped, sat on, kicked in the ribs and cut with a knife by the defendant; and where the victim temporarily lost consciousness and stopped breathing, sustained contusions to his neck, experienced pain, had difficulty swallowing and was prescribed medication after being choked by the defendant.

People v Todd, 59 NY2d 694, 695-696 (1983): the victim suffered pain and symptoms for three to five weeks from a concussion and laceration to his head, multiple bruises and sprains, and a bruised and swollen foot which could not support his weight.

The threshold for substantial pain under the criminal law is more than a mere technical battery, and petty slaps, shoves, kicks and the like delivered out of hostility, meanness and similar motives are not within the statutory definition. In each case where the Court of Appeals has upheld a finding of substantial pain, some objective evidence supports that finding.

People v. Perez is found at this link:

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