People v. Armstrong

• Decision Date: 13 February 2015
• Citation: 125 A.D.3d 1493,3 N.Y.S.3d 861,2015 N.Y. Slip Op. 01335
• Parties: The PEOPLE of the State of New York, Respondent, v. Earlwood ARMSTRONG, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 1493

3 N.Y.S.3d 861

2015 N.Y. Slip Op. 01335

The PEOPLE of the State of New York, Respondent,

v.Earlwood ARMSTRONG, Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 13, 2015

Affirmed as modified, and remitted for sentencing. Linda M. Campbell, Syracuse, for Defendant–Appellant.

William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, LINDLEY, AND VALENTINO, JJ.MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of gang assault in the first degree (Penal Law § 120.07). The evidence presented by the People established that an escalating conflict between defendant and the victim during a party inside the victim's apartment ended in a fight outside the apartment. During the fight, the victim was kicked and punched by defendant and three other assailants, and was struck in the head with an object by one of the other assailants. After being struck in the head, the victim fell to the ground, where the attack continued. Prior to the fight, the three other assailants had agreed to help defendant fight the victim.

Defendant contends that the evidence is legally insufficient to establish that the victim sustained a serious physical injury, a necessary element of gang assault in the first degree. That term is defined 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” (Penal Law § 10.00[10] ). Although defendant failed to preserve his contention for our review by failing to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396), we nevertheless exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15[6][a] ). Viewing the evidence in the light most favorable to the People, we conclude that no “ ‘rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” ( People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932).

Resolution of the issue whether the victim sustained a serious physical injury depends upon the nature of “the victim's actual injuries, rather than mere possibilities or what could have happened” ( People v. Tucker, 91 A.D.3d 1030, 1032, 936 N.Y.S.2d 386, lv. denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [emphasis added]; see People v. Nimmons, 95 A.D.3d 1360, 1360–1361, 945 N.Y.S.2d 358, lv. denied 19 N.Y.3d 1028, 953 N.Y.S.2d 561, 978 N.E.2d 113). The evidence at trial concerning the victim's injuries mainly consisted of the testimony of the victim and his treating physician, and several photographs of the victim. That evidence established that, as a result of the fight, the victim sustained a two-to three-inch laceration on the back of his head, associated swelling and a hematoma, and other superficial injuries. A CT scan revealed nothing more serious than “soft tissue swelling of the scalp,” although prior to that scan, the treating physician acknowledged that the injuries could have been considered life-threatening. For treatment, staples were used to close the laceration, and the victim was prescribed antibiotics and painkillers; he was released from the hospital shortly after his arrival. The laceration left a scar on the back of the victim's head. Considering his actual injuries, we conclude that the victim's wounds were not so severe as to “create[ ] a substantial risk of death” within the meaning of Penal Law § 10.00(10) ( SEE TUCKER, 91 A.D.3D AT 1032, 936 n.y.s.2d 386; see also people v. Madera, 103 A.D.3d 1197, 1198, 959 N.Y.S.2d 337, lv. denied 21 N.Y.3d 1006, 971 N.Y.S.2d 257, 993 N.E.2d 1280).

We also conclude that the People failed to present evidence establishing that the victim's injuries resulted in “serious and protracted disfigurement” (Penal Law § 10.00[10] ). When “viewed in context, considering its location on the body and any relevant aspects of the victim's overall physical appearance,” we cannot say that the scar on the victim's head would cause a reasonable observer to “find [his] 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). The mere presence of a scar, standing alone, is insufficient to establish serious disfigurement ( see People v. Stewart, 18 N.Y.3d 831, 832, 939 N.Y.S.2d 273, 962 N.E.2d 764; McKinnon, 15 N.Y.3d at 316, 910 N.Y.S.2d 767, 937 N.E.2d 524; People v. Trombley, 97 A.D.3d 903, 903–904, 947 N.Y.S.2d 686). Moreover, the record does not indicate whether the jury was ever formally shown the victim's scar, and we cannot simply infer “that whatever the jury saw must have supported its verdict” ( McKinnon, 15 N.Y.3d at 316, 910 N.Y.S.2d 767, 937 N.E.2d 524; see generally People v. Mazariego, 117 A.D.3d 1082, 1083, 986 N.Y.S.2d 235; People v. Brown, 100 A.D.3d 1035, 1036, 952 N.Y.S.2d 828, lv. denied 20 N.Y.3d 1009, 960 N.Y.S.2d 352, 984 N.E.2d 327, reconsideration denied 21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891). Moreover, the evidence did not establish that the victim's injuries resulted in “protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]; see People v. Phillip, 279 A.D.2d 802, 803–804, 718 N.Y.S.2d 727, lv. denied 96 N.Y.2d 905, 730 N.Y.S.2d 803, 756 N.E.2d 91; see also Stewart, 18 N.Y.3d at 832–833, 939 N.Y.S.2d 273, 962 N.E.2d 764).

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