People v. Patterson

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oneida County Court for resentencing in accordance with the following Memorandum: As a result of his altercation with defendant, complainant suffered minor cuts and bruises and transient pain, which did not require medical treatment. Viewing the evidence in the light most favorable to the People, we conclude that there was not sufficient evidence of physical injury as defined in the Penal Law (Penal Law § 10.00 [9]) to support defendant’s conviction of robbery in the second degree and assault in the second degree (see, People v Rolando, 168 AD2d 578, Iv denied 77 NY2d 910; People v Prosser, 130 AD2d 972; People v Dorsey, 112 AD2d 536, 537, Iv denied 66 NY2d 763; People v Contreras, 108 AD2d 627, 628). Complainant’s testimony that the altercation caused “emotional upset” resulting in a “flare up” of arthritis in his knee, without competent supporting medical proof, was not sufficient to establish that defendant’s conduct was a proximate cause of the recurrence of complainant’s arthritis (see generally, People v Stewart, 40 NY2d 692, 697; People v McCart, 157 AD2d 194, 197, Iv denied 76 NY2d 861). The evidence established, however, that defendant forcibly stole property from complainant. Defendant’s conviction of robbery in the second degree is therefore modified by reducing the conviction to robbery in the third degree (see, Penal Law § 160.05; see also, CPL 470.15 [2] [a]) and by vacating the sentence imposed thereon, and the matter is remitted to County Court for resentencing. Because the assault in the second degree count was an inclusory concurrent count of the robbery count (see, CPL 300.30 [4]; 300.40 [3] [b]; see also, People v Rogers, 139 AD2d 782, 783; People v Boyd, 102 AD2d 774), defendant’s conviction on the assault charge is reversed, his sentence thereon vacated, and the assault count dismissed.

We have examined defendant’s other contentions and find them to be without merit. (Appeal from Judgment of Oneida County Court, Auser, J. — Robbery, 2nd Degree.) Present— Green, J. P., Fallon, Boomer, Davis and Boehm, JJ.