Opinion
16870 Ind. No. 4024/17 Case No. 2020-01597
12-13-2022
The PEOPLE of the State of New York, Respondent, v. David MCBRIDE, Defendant–Appellant.
Caprice R. Jenerson, Office of Appellate Defender, New York (Rosemary Herbert of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Faith DiTrolio of counsel), for respondent.
Caprice R. Jenerson, Office of Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Faith DiTrolio of counsel), for respondent.
Renwick, J.P., Kapnick, Oing, Moulton, Higgitt, JJ.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered January 22, 2020, convicting defendant, after a jury trial, of assault in the first degree (two counts), and sentencing him, as a persistent violent felony offender, to concurrent prison terms of 20 years to life, unanimously modified, on the law, to the extent of reducing the convictions to attempted assault in the first degree and remanding for resentencing, and otherwise affirmed.
Defendant's convictions were not supported by legally sufficient evidence because the People failed to prove that the victim suffered serious and permanent disfigurement, which was the basis of both counts (see Penal Law §§ 120.10[1], [2] ). The People relied solely on two photos of the victim depicting a scar on his cheek, and the scar was briefly described by the doctor who treated the victim on the day of the slashing. Despite the scar's prominent location, neither the photos nor the doctor's testimony warrant an inference that the scar rendered the victim's appearance "distressing or objectionable" to a reasonable observer (see People v. McKinnon, 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 [2010] ). The victim did not testify, so the jury had no opportunity to observe the actual scar and evaluate whether it was seriously disfiguring, nor was any other evidence adduced regarding the scar's effects on the victim's appearance, health, and life (compare e.g. People v. Villalona, 145 A.D.3d 625, 625, 46 N.Y.S.3d 7 [1st Dept. 2016], lv denied 29 N.Y.3d 953, 54 N.Y.S.3d 384, 76 N.E.3d 1087 [2017] ).
While we conclude that the convictions of assault in the first degree cannot stand, we remain authorized to modify the judgment (see CPL 470.15[2][a] ) upon our conclusion that, after viewing the evidence in a light most favorable to the People, it was sufficient to establish the lesser included offense of attempted assault in the first degree (see CPL 1.20[37] ; Penal Law § 110.00 ). The verdict was not against the weight of the evidence with respect to the proof of defendant's intent to cause serious injury (see People v. Lamont, 25 N.Y.3d 315, 319, 12 N.Y.S.3d 6, 33 N.E.3d 1275 [2015] ). Surveillance video footage and medical evidence established that defendant slashed the victim in the face with a sharp object, which is the sort of attack that is likely to result in serious physical injury and permanent disfigurement (see e.g. People v. Jones, 110 A.D.3d 493, 973 N.Y.S.2d 136 [1st Dept. 2013], lv denied 24 N.Y.3d 962, 996 N.Y.S.2d 221, 20 N.E.3d 1001 [2014] ; People v. Walker, 30 A.D.3d 215, 816 N.Y.S.2d 466 [1st Dept. 2006] ). There is no basis for disturbing the jury's determinations concerning the credibility and reliability of the witnesses and evidence with respect to this element.
Defendant's challenge to the court's jury charge is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we find that the court's charge as a whole conveyed the appropriate principles (see People v. Cubino, 88 N.Y.2d 998, 1000, 648 N.Y.S.2d 868, 671 N.E.2d 1265 [1996] ; see also People v. Radcliffe, 232 N.Y. 249, 254, 133 N.E. 577 [1921] ; People v. Reinoso, 257 A.D.2d 484, 485, 685 N.Y.S.2d 4 [1st Dept. 1999], lv denied 93 N.Y.2d 901, 689 N.Y.S.2d 713, 711 N.E.2d 989 [1999] ).