Summary
finding insufficient injury for first degree assault conviction where the only physical effects of assault persisting until time of trial, eight months later, were that "[i]t hurts once in a while when the weather changes"
Summary of this case from Angel v. GarvinOpinion
December 6, 1993
Appeal from the Supreme Court, Queens County (Fisher, J.).
Ordered that the judgments and orders are affirmed, and the matter is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).
Contrary to the People's contention, the Supreme Court properly modified the jury verdicts by reducing the defendants' convictions of assault in the first degree to assault in the second degree. To sustain a conviction of assault in the first degree, Penal Law § 120.10 (1), requires proof beyond a reasonable doubt that the complainant suffered a "serious physical injury", which is defined by Penal Law § 10.00 (10) as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." While, generally, whether there was serious physical injury is a factual issue for the jury (see, People v Rojas, 61 N.Y.2d 726; Matter of Philip A., 49 N.Y.2d 198), in this case, the court properly reduced the defendants' convictions of assault in the first degree to assault in the second degree.
As a result of the defendants' attack, the complainant suffered two stab wounds which required suturing. The complainant was treated and released from the hospital and was absent from work for the next two weeks. At trial, approximately 18 months after the attack, when asked whether he suffered any physical effects from the injuries which he had sustained, the complainant replied, "It hurts once in a while when the weather changes." Viewing this evidence in the light most favorable to the People (see, People v Kern, 75 N.Y.2d 638, 658, cert denied 498 U.S. 824; People v Contes, 60 N.Y.2d 620, 621), we hold that the People did not produce sufficient evidence to establish that the complainant suffered either a "substantial risk of death" or "protracted impairment of health" within the meaning of Penal Law § 10.00 (10) (see, People v Blunt, 176 A.D.2d 741; People v Robles, 173 A.D.2d 337).
The defendants' contentions are either unpreserved for appellate review (see, People v Medina, 53 N.Y.2d 951; CPL 470.05) or without merit (see, People v Banch, 80 N.Y.2d 610, 615-616; People v Mahboubian, 74 N.Y.2d 174, 183-184; People v Galloway, 54 N.Y.2d 396; People v Marks, 6 N.Y.2d 67, cert denied 362 U.S. 912; People v Laguer, 195 A.D.2d 483). Rosenblatt, J.P., Miller, Lawrence and Pizzuto, JJ., concur.