People v. Brown

• Decision Date: 01 November 2012
• Citation: 2012 N.Y. Slip Op. 07230,100 A.D.3d 1035,952 N.Y.S.2d 828
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas F. BROWN, Appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1035
952 N.Y.S.2d 828
2012 N.Y. Slip Op. 07230

The PEOPLE of the State of New York, Respondent,
v.
Thomas F. BROWN, Appellant.

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

Nov. 1, 2012.

[952 N.Y.S.2d 829]

Laura Marie Conley, Delmar, for appellant.

Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, KAVANAGH, STEIN and EGAN JR., JJ.

LAHTINEN, J.

[100 A.D.3d 1035]Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered

[952 N.Y.S.2d 830]

June 3, 2010, upon a verdict convicting defendant of the crimes of assault in the first degree and criminal possession of a weapon in the third degree.

In May 2009, defendant and his girlfriend engaged in a verbal dispute at his girlfriend's apartment in the City of Binghamton, Broome County. Police were summoned, no arrests were made, and defendant left the apartment. Shortly after midnight later that same evening, defendant saw his girlfriend walking on a street; he exited his truck and instructed her to get into the vehicle with him. The victim, an acquaintance of the girlfriend, was nearby and encouraged the girlfriend not to accompany defendant. A brief verbal exchange between defendant and the victim preceded a physical confrontation between the two men in the street. Defendant slashed the victim's stomach with a utility knife, returned to his truck and drove off. The victim was taken by ambulance to a hospital where he received treatment for a 12–inch cut, two to three inches deep, across his abdomen. Defendant was indicted for assault in the first degree and criminal possession of a weapon in the third degree. Following a jury trial, he was found guilty of both counts and thereafter sentenced to an aggregate prison term of 10 years with five years of postrelease supervision. Defendant appeals.

We find merit in defendant's argument that the evidence in this record, viewed in the light most favorable to the People, does not establish the serious physical injury element of assault [100 A.D.3d 1036]in the first degree. “ ‘Serious physical injury’ 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’ ” ( People v. Gray, 30 A.D.3d 771, 772, 816 N.Y.S.2d 609 [2006],lv. denied7 N.Y.3d 848, 823 N.Y.S.2d 777, 857 N.E.2d 72 [2006], quoting Penal Law § 10.00[10]; see People v. Tucker, 91 A.D.3d 1030, 1031, 936 N.Y.S.2d 386 [2012],lv. denied19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ). The cut was 12 inches long and up to three inches deep, but it did not injure any internal organs. The surgery to explore and staple the wound lasted less than 20 minutes, no main vessels were injured and the victim was discharged within about 12 hours of arriving at the hospital. He was given pain medication and his activities were limited for two weeks. The physician who treated him testified that the wound would typically heal within 6 to 12 weeks and that he would experience pain with movement during such time. The victim stated that his movement was restricted for a couple of months and that he currently feels a burning sensation in the area of the injury when he sweats. Although he stated that he has a scar, there is no indication that he showed the scar to the jury. “ Without minimizing the nature of the victim's injuries, we are constrained by this lack of proof to conclude that ... the evidence does not support a finding that [he] sustained serious physical injury within the meaning of the statute” ( People v. Alvarez, 38 A.D.3d 930, 934, 830 N.Y.S.2d 848 [2007],lv. denied8 N.Y.3d 981, 838 N.Y.S.2d 484, 869 N.E.2d 660 [2007]...