People v. Sleasman

• Decision Date: 22 December 2005
• Docket Number: 16139.
• Citation: 2005 NY Slip Op 09773,24 A.D.3d 1041,805 N.Y.S.2d 736
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS M. SLEASMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

24 A.D.3d 1041

805 N.Y.S.2d 736

2005 NY Slip Op 09773

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THOMAS M. SLEASMAN, Appellant.

16139.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 22, 2005.

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December 17, 2004 in Albany County, upon a verdict convicting defendant of the crime of assault in the first degree.

ROSE, J.

Defendant and the victim, who was then his girlfriend and is now his wife, had a history of alcohol abuse and physical altercations. Following a day of heavy drinking by both of them, they began fighting. They claimed to be unable to recall most of the details of their fight because of their level of intoxication, but approximately 12 hours later defendant and the victim awoke to discover the victim covered with dried blood. She had sustained, among other injuries, a knife wound to her neck. Defendant summoned an ambulance and the victim was transported to a hospital where her wound was closed with butterfly sutures, she was kept overnight for observation and released the following day. Defendant was subsequently indicted on two counts of assault in the first degree, criminal possession of a weapon in the third degree, unlawful imprisonment in the first degree and assault in the third degree. Following a jury trial, he was convicted of first degree depraved indifference assault under Penal Law § 120.10 (3) and acquitted of the other counts. Supreme Court denied defendant's CPL 330.30 motion, sentenced him to a prison term of seven years, and then stayed the sentence pending this appeal.

Defendant argues that the weight of the evidence does not support the serious physical injury element of assault in the first degree (see Penal Law § 120.10 [3]), and the failure to establish a serious physical injury requires that the conviction be reduced to assault in the third degree (see Penal Law § 120.00 [2]). We agree. The well-settled standard for weight of the evidence review in a case where, as here, a different result would not have been unreasonable, includes weighing "the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v. Bleakley, 69 NY2d 490, 495 [1987] [internal quotation marks and citation omitted]). The definition of a serious physical injury includes "physical injury which creates a substantial risk of 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]; see People v. Phillip, 279 AD2d 802, 803 [2001], lv denied 96 NY2d 905 [2001]).

Here, the victim was conscious and communicating when medical assistance arrived. While her injury was characterized as having the potential to be life threatening, tests conducted at the hospital determined the wound to be a cut in the platysma muscle and disclosed no damage to her trachea, esophagus or the major vessels in her neck. She was given two units of blood, which stabilized her heart rate and blood pressure. Although testing revealed that her CPK enzyme level was elevated and a cause for concern, cross-examination revealed that the risk of death was not substantial. After reviewing and weighing all of the evidence in the record, we cannot say that it supports a...