
    The People of the State of New York, Respondent, v Herbie Booker, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 28, 1975, convicting him of robbery in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence. 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 NY2d 373). Appellant’s other contentions have been considered and have been found to be without merit. Hopkins, J. P., Martuscello, Latham and O’Connor, JJ., concur.  