
    The People of the State of New York, Respondent, v. Samuel E. McDowell, Appellant.
    Argued April 22, 1971;
    decided May 13, 1971.
    
      
      George W. Harder for appellant.
    I. The facts in this record are not sufficient to support a conviction for assault, second degree, in violation of subdivision 3 of section 120.05 of the New York Penal Law (indictment’s second count) as to an alleged assault on police officer Deso. (People v. Weiss, 290 N. Y. 160; People v. Woltering, 275 N. Y. 51; People v. Suffern, 267 N. Y. 115; People v. Fitzgerald, 156 N. Y. 253; Thompson v. Louisville, 362 U. S. 199; Taylor v. Louisiana, 370 U. S. 154 ; Shuttlesworth v. Birmingham, 382 U. 8. 87; Brown v. Louisiana, 383 U. 8.131.) II. The trial court committed prejudicial error when it refused to charge harassment (New York Penal Law, § 240.25, subd. 1) as a lower degree of assault or as a crime included within the concept of assault. (People v. Mussenden, 308 N. Y. 558; People v. Malave, 21 N Y 2d 26; People v. Moran, 246 N. Y. 100.) III. Albany County’s policy of excluding Negroes from its criminal jury panels deprived defendant of due process of law, denied him a fair trial and denied him certain constitutional rights. (Whitus v. Georgia, 385 U. S. 545; Carter v. Jury Comm., 396 U. S. 320.)
    
      Arnold W. Proskin, District Attorney (James F. Downs of counsel), for respondent.
    I. The convictions were based on legally sufficient evidence. II. The trial court properly refused to submit a charge of harassment to the jury. (People v. Mussenden, 308 N. Y. 558; People v. Moyer, 27 N.Y 2d 252.) III. Appellant’s challenges to the array of grand and petit juries were properly denied. (People ex rel. Van Slyke v. Wattack, 6 A D 2d 958; People v. Pulliam, 28 A D 2d 786; Carter v. Jury Comm., 396 U. S. 320; Whitus v. Georgia, 385 U. S. 545.)
   Memorandum. 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, seriousness, accompanying swelling, or suggestion of pain was insufficient to sustain the felony conviction. It is interesting that for the altercation with the civilian underlying the first count of the indictment, the jury saw fit to extend leniency by convicting defendant only of the lesser misdemeanor charge. This shows the importance of the one element to sustain the second count. For the grave consequences of a felony conviction and sentence to depend on the casual reference in the record to the blackened eye is unsound. Certainly, the undeveloped evidence of the record fails to provide evidence to satisfy this critical element of the felony upon which the jury could find guilt beyond a reasonable doubt.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Bkeitel, Jasen and Gibson concur.

Judgment accordingly.  