People v. Stewart

• Decision Date: 15 December 2011
• Citation: 939 N.Y.S.2d 273,18 N.Y.3d 831,962 N.E.2d 764,2011 N.Y. Slip Op. 08999
• Parties: The PEOPLE of the State of New York, Respondent, v. Wayne R. STEWART, Appellant.
• Court: New York Court of Appeals Court of Appeals

18 N.Y.3d 831
2011 N.Y. Slip Op. 08999
939 N.Y.S.2d 273
962 N.E.2d 764

The PEOPLE of the State of New York, Respondent,
v.
Wayne R. STEWART, Appellant.

Court of Appeals of New York.

Dec. 15, 2011.

[939 N.Y.S.2d 273]

Anthony J. LaFache, Utica, for appellant.

John H. Crandall, District Attorney, Herkimer (Jeffrey S. Carpenter and Jacquelyn M. Asnoe of counsel), for respondent.

[18 N.Y.3d 832] [962 N.E.2d 764] OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be modified by reducing defendant's conviction for assault in the first degree (Penal Law § 120.10 [1] ) to one for assault in the second degree (Penal Law § 120.05[2] ) and remitting to County Court for resentencing and, as so modified, affirmed.

While the assault upon which defendant's conviction is based was serious, involving numerous blows with a sharp instrument, the resulting injuries were described in their most acute aspect by the treating emergency room physician as “superficial”; no organ damage or injury to [962 N.E.2d 765]

[939 N.Y.S.2d 274]

muscle tissue was radiologically evident. Three of the victim's four wounds required only gauze dressing. And, while the remaining six-to-seven-centimeter wound on the victim's inner forearm was sutured, the victim spent just one day in the hospital without follow-up medical care, apart from the removal of his stitches. These injuries were not shown to be objectively “distressing or objectionable” ( see People v. McKinnon, 15 N.Y.3d 311, 315, 910 N.Y.S.2d 767, 937 N.E.2d 524 [2010] ) so as to justify the conclusion that they constituted “serious ... disfigurement” qualifying as a serious physical injury predicate for first degree assault under Penal Law § 120.10(1) and § 10.00(10).

Nor was serious physical injury proved upon the alternative ground set forth in the same Penal Law provisions, that the victim suffered “protracted impairment of health.” It is true that the victim complained of daily pain attributable to his healing scars, but there was no basis for the jury reasonably to conclude that these sensations, discomfiting as they may have been, were indicative of or causally related to any protracted health impairment. There was, as noted, no medical evidence of an injury even potentially giving rise to extended health impairment. And, while we do not exclude the possibility that pain [18 N.Y.3d 833] may itself be disabling and result in protracted impairment of health, there was no evidence that the pain complained...