People v. Trombley

• Citation: 97 A.D.3d 903,2012 N.Y. Slip Op. 05565,947 N.Y.S.2d 686
• Parties: The PEOPLE of the State of New York, Respondent, v. Ricky TROMBLEY, Appellant.
• Decision Date: 12 July 2012
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 903
947 N.Y.S.2d 686
2012 N.Y. Slip Op. 05565

The PEOPLE of the State of New York, Respondent,
v.
Ricky TROMBLEY, Appellant.

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

July 12, 2012.

[947 N.Y.S.2d 687]

G. Scott Walling, Queensbury, for appellant.

Kristy L. Sprague, District Attorney, Elizabethtown (Brian W. Felton of counsel), for respondent.

Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.

KAVANAGH, J.

[97 A.D.3d 903]Appeal from a judgment of the County Court of Essex County (Meyer, J.), rendered April 5, 2011, upon a verdict convicting defendant of the crime of assault in the second degree and the traffic infraction of consumption or possession of alcohol in a motor vehicle on a highway.

In December 2009, defendant and the victim engaged in an argument, which ended with defendant striking the victim in the face with his fist. The victim sustained two lacerations to his face, one below his lip and another below his chin. As a result, defendant was subsequently indicted and, after a jury trial, convicted of, among other things, assault in the second degree. Defendant was sentenced, as a second violent felony offender, to 6 1/2 years in prison, plus two years of postrelease supervision, and he now appeals.

As relevant here, a person is guilty of assault in the second degree when, “[w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person” (Penal Law § 120.05 [1] ). Serious physical injury is defined as a physical injury that 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 ( seePenal Law § 10.00[10] ). Here, the People simply alleged that the two scars on the victim's face resulting from this assault, the larger one located under his lower lip being approximately one inch long, constituted a serious and protracted disfigurement and, therefore, qualified as a serious physical injury.

The Court of Appeals has held that “[a] person is ‘seriously’ disfigured when a reasonable observer would find [his or] her altered appearance distressing or objectionable. The standard is an objective one, but we do not imply that the only relevant factor is the nature of the injury; the injury must be viewed in context, considering its location on the body and any relevant aspects of the victim's...