People v. Rice

• Decision Date: 15 December 2011
• Citation: 90 A.D.3d 1237,2011 N.Y. Slip Op. 09042,935 N.Y.S.2d 169
• Parties: The PEOPLE of the State of New York, Respondent, v. Kyle RICE, Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09042
90 A.D.3d 1237
935 N.Y.S.2d 169

The PEOPLE of the State of New York, Respondent,
v.
Kyle RICE, Appellant.

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

Dec. 15, 2011.

[935 N.Y.S.2d 169]

Neal D. Futerfas, White Plains, for appellant.

D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.

Before: MERCURE, Acting P.J., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

McCARTHY, J.

[90 A.D.3d 1237] Appeal from a judgment of the Supreme Court (McDonough, J.), rendered May 27, 2009 in Ulster County, upon a verdict convicting defendant of the crime of assault in the first degree.

Defendant shot the victim several times at point blank range, injuring him. Out of

[935 N.Y.S.2d 170]

nine counts in the ensuing indictment, six were dismissed prior to trial and two were dismissed during trial. The jury convicted defendant of the remaining count, assault in the first degree. Supreme Court sentenced defendant to 15 years in prison, followed by five years of postrelease supervision. Defendant appeals.

The conviction was supported by legally sufficient evidence and was not against the weight of the evidence. The People had to prove that “[w]ith intent to cause serious physical injury to another person, [defendant] cause[d] such injury to such person ... by means of a deadly weapon or a dangerous instrument” (Penal Law § 120.10[1] ). The element truly at issue is whether the victim suffered a serious physical injury, defined as a “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] ).

The victim testified that he and defendant had a disagreement, defendant fired several shots from a handgun in the victim's direction, defendant said “how does that feel?”, then the victim noticed pain and bullet holes in his body. Defendant was standing about three feet away from the victim at the time. [90 A.D.3d 1238] At the emergency room, the victim passed out. He had been shot in his left thigh, left buttock and right arm; his right humerus was broken by a bullet. Surgeons removed two bullets from his body, but left one in his thigh because it was more dangerous to remove it. The victim testified—more than a year after the incident—that he could not fully extend or straighten his arm and was unable to lift...