Summary
holding that loss of four front teeth constituted serious and protracted disfigurement
Summary of this case from Hiraeta v. New YorkOpinion
2013-10-24
The PEOPLE of the State of New York, Respondent, v. Herman EVERETT, Defendant–Appellant.
Law Offices of Leslie H. Ben–Zvi, New York (Leslie H. Ben–Zvi of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.
Law Offices of Leslie H. Ben–Zvi, New York (Leslie H. Ben–Zvi of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.
SWEENY, J.P., RENWICK, FEINMAN, CLARK, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered December 16, 2011, convicting defendant, after a nonjury trial, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.
The verdict was based on legally sufficient evidence ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The element of serious physical injury (Penal Law § 10.00[10] ) was established, because the victim's permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ ( see People v. Lanier, 44 A.D.3d 547, 843 N.Y.S.2d 629 [1st Dept.2007], lv. denied 9 N.Y.3d 1035, 852 N.Y.S.2d 20, 881 N.E.2d 1207 [2008];People v. Howard, 79 A.D.2d 1064, 435 N.Y.S.2d 399 [3rd Dept.1981] ). Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious ( see e.g. People v. Rosado, 88 A.D.3d 454, 455, 930 N.Y.S.2d 10 [2011],lv. denied18 N.Y.3d 928, 942 N.Y.S.2d 467, 965 N.E.2d 969 [2012] ), this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.
Furthermore, the victim's loss of four front teeth also constituted a “serious and protracted disfigurement,” since “a reasonable observer would find her altered appearance distressing or objectionable” ( People v. McKinnon, 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 [2010];see also People v. Snyder, 100 A.D.3d 1367, 1368, 953 N.Y.S.2d 430 [4th Dept.2012], lv. denied21 N.Y.3d 1010, 971 N.Y.S.2d 262, 993 N.E.2d 1285 [2013] [disfiguring dental injuries] ). The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the disfigurement will be readily apparent.
We have considered and rejected defendant's remaining arguments.