People v. McDowell

*375Memorandum. The judgment should be modified by reversing the conviction for assault in the second degree under the second count and dismissing that count of the indictment, and, as so modified, the judgment should be affirmed.

While the Penal Law (§ 120.05, subd. 3) requires no particular degree of physical impairment or substantial pain under the definition of physical injury in the Penal Law to sustain a conviction (§ 10.00, subd. 9), there must be evidence establishing the one or the other. In this case the incidental reference to a blackened eye without any development of its appearance,…