People v. Beatty
| Citation | 521 N.Y.S.2d 500,134 A.D.2d 602 |
| Parties | The PEOPLE, etc., Respondent, v. John BEATTY, Appellant. |
| Decision Date | 30 November 1987 |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Katherine C. Edgell, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Randi Fleishman, of counsel), for respondent.
Before MOLLEN, P.J., and RUBIN, KOOPER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Posner, J.), rendered June 25, 1986, convicting him of assault in the first degree and assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by reversing the conviction for assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the prosecution adduced sufficient evidence of serious physical injury to sustain the defendant's conviction for the offense of assault in the first degree. The record demonstrates that the complainant suffered a fracture of the lamina as a result of the gunshot wound and that a bullet fragment lodged perilously close to his spine, thus precluding surgery due to the risk of paralysis. Moreover, the complainant was restricted by his doctors from playing contact sports and engaging in strenuous activities as a result of the gunshot wound. He also continues to suffer back discomfort when playing basketball. Hence, under these circumstances, we find the evidence sufficient to establish the element of serious physical injury (see, Penal Law § 120.10[1]; § 10.00[10]; see generally, People v. Rollins, 118 A.D.2d 949, 499 N.Y.S.2d 817; People v. Ahearn, 88 A.D.2d 691, 451 N.Y.S.2d 318; People v. Salisbury, 64 A.D.2d 763, 407 N.Y.S.2d 263).
Furthermore, the defendant's claim that he was denied a fair trial by certain alleged instances of prosecutorial misconduct is unpersuasive. Insofar as the prosecutor attempted to impeach a defense witness by questioning him about his relationship with a group known as the "Five Percenters", we note that a mistrial was not warranted as the prosecutor discontinued this line of questioning when the witness stated that he was unfamiliar with the group. Additionally, the jury was not informed of the activities, beliefs or reputation of the group, nor did the prosecutor attempt to attribute illegal, immoral or vicious acts to its members (see,...
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