People v. Pittman, 15718
| Decision Date | 26 October 2006 |
| Docket Number | 15718 |
| Citation | 33 A.D.3d 1118,2006 NY Slip Op 7636,823 N.Y.S.2d 256 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TYSHAWN C. PITTMAN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of the County Court of Cortland County (Campbell, J.), rendered September 16, 2004, upon a verdict convicting defendant of the crimes of assault in the first degree, assault in the second degree (three counts) gang assault in the second degree, robbery in the first degree (two counts) and robbery in the second degree (two counts).
Crew III, J.
On November 6, 2003, in the City of Cortland, Cortland County, Jahvan Henriques was assaulted and robbed by members of a gang that included defendant. As a consequence, defendant was indicted and charged with three counts of assault in the first degree, one count of gang assault in the first degree, three counts of assault in the second degree, one count of gang assault in the second degree, two counts of robbery in the first degree and two counts of robbery in the second degree. Following a jury trial, defendant was convicted of one count of assault in the first degree, three counts of assault in the second degree, one count of gang assault in the second degree, two counts of robbery in the first degree and two counts of robbery in the second degree and was sentenced to, inter alia, a term of 10 years of imprisonment with five years of postrelease supervision. Defendant now appeals.
Initially, defendant contends that the evidence at trial regarding counts three, four, eight and nine of the indictment was legally insufficient to sustain a finding that the victim suffered a serious physical injury. We agree. As a starting point, we observe that County Court incorrectly charged the jury regarding the meaning of "serious physical injury" and, while no objection was taken to the charge in that regard, we will address it in the interest of justice. County Court charged the jury that "[s]erious physical injury means impairment of a person's physical condition, which creates a substantial risk of death or serious and protracted disfigurement or protracted impairment of health." Statutorily, serious physical injury means an injury "which creates a substantial risk of death, or which causes ... 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]). Accordingly, pursuant to County Court's charge, a jury could find serious physical injury if the evidence demonstrated a substantial risk of protracted disfigurement or protracted impairment of health as opposed to the actual creation of such a condition. Indeed, the People's medical expert was asked on more...
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