Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered June 9, 2006, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of three years, unanimously reversed, on the law, and the matter remanded for a new trial.
Although it admirably devoted a great deal of time to considering this very close question, the court should have instructed the jury as to justification. That defense was supported by a reasonable view of the evidence, viewed in the light most favorable to defendant. We note that defendant’s contention that there were two separate incidents is extraordinarily unlikely. Nevertheless, it would not have been entirely implausible for the jury to find that there were two separate encounters, that in the second of the two encounters, the complainant bus driver was the aggressor, that defendant’s actions in rolling around with the complainant on the ground caused the complainant’s
We note that defendant’s conviction cannot stand based solely on the fact that defendant struck the complainant while he was still on the bus. That blow to the face does not appear, on this record, to have resulted in the physical injury required to sustain the People’s burden (see Penal Law § 120.05 [11]; § 10.00 [9]; see also People v McDowell, 28 NY2d 373 [1971] [incidental reference to an injury without development of its appearance or seriousness not sufficient to sustain conviction]).
Finally, the identification testimony at issue on this appeal did not require CPL 710.30 (1) (b) notice (see People v Burgos, 219 AD2d 504 [1995], lv denied 86 NY2d 872 [1995]). Concur— Tom, J.P., Mazzarelli, Nardelli, Catterson and Moskowitz, JJ.