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PEOPLE v. BOOKER

61 A.D.2d 988 (1978)

The People of the State of New York, Respondent, v. Herbie Booker, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 6, 1978

Judgment modified, on the facts, by reversing the conviction of assault in the second degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed.

The People failed to establish beyond a reasonable doubt that the complainant suffered a "physical injury"; the assault count must therefore be dismissed (see Penal Law, § 10.00, subd 9; People v McDowell, 28 N.Y.2d 373). Appellant...

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