| People v Ham |
| 2009 NY Slip Op 07879 [67 AD3d 1038] |
| November 5, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Dwayne Ham,Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the County Court of Schenectady County (Hoye,J.), rendered June 20, 2007, upon a verdict convicting defendant of the crimes of assault in thefirst degree, reckless endangerment in the first degree, criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree.
In April 2005, defendant and the victim got into an argument while playing basketball at apublic park in the City of Schenectady, Schenectady County. The victim, who was on the sameteam as defendant, felt that defendant was not taking the game seriously or playing hard enough.The argument escalated until a mutual friend separated defendant and the victim, who bothwalked away before any punches were thrown. Defendant then left the park, only to return 15 to20 minutes later in a car driven by his brother, codefendant Carl Molano.
According to the victim and an eyewitness, defendant walked towards him and asked tospeak with him. When the victim approached, defendant pulled out a handgun and began firingat the victim, who pulled out his own handgun, ran behind a tree and fired back at defendant.Defendant remained in an open area, screaming that he was going to kill the victim andcontinuing to fire his handgun until he was out of bullets. At that point, the victim fled the park,firing at least two shots at defendant as he ran away. While the victim was running across thepark, Molano allegedly got out of the car, knelt down and shot at the victim with a rifle, hitting[*2]him in the left thigh. As defendant and Molano left the scene,the victim continued to run to his aunt's nearby home and was later taken to the hospital.
Defendant and Molano were subsequently charged in an indictment with numerous crimes,including attempted murder in the second degree, assault in the first degree, and assault in thesecond degree. Following a jury trial, both defendant and Molano were convicted of assault inthe first degree, reckless endangerment in the first degree, criminal possession of a weapon in thesecond degree and criminal possession of a weapon in the third degree. Thereafter, defendantwas sentenced to an aggregate term of 12 years in prison. Defendant now appeals.
Initially, we reject defendant's argument that County Court erred in denying his request for ajustification charge (see Penal Law § 35.15). "Although the record must beconsidered in the light most favorable to the accused, a court need not charge justification if noreasonable view of the evidence establishes the elements of the defense" (People vReynoso, 73 NY2d 816, 818 [1988] [citations omitted]; see People v Padgett, 60NY2d 142, 144-145 [1983]). Inasmuch as there is no reasonable view of the evidence underwhich the jury could have concluded that defendant lacked an avenue of safe retreat or that hewas not the initial aggressor upon returning to the park, the justification defense was notavailable here (see Penal Law § 35.15 [1] [b]; [2] [a]; People v Reynoso,73 NY2d at 818; People v Grady,40 AD3d 1368, 1371-1373 [2007], lv denied 9 NY3d 923 [2007]; see also People v Petty, 7 NY3d277, 284-286 [2006]).
We agree with defendant, however, that the evidence adduced at trial is legally insufficientto support his conviction of assault in the first degree (see Penal Law § 120.10[1]). Specifically, we find merit in defendant's argument that the People failed to prove that thevictim suffered a "serious physical injury," which is defined as a "physical injury which creates asubstantial 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 bodilyorgan" (Penal Law § 10.00 [10]). Although the victim testified that he suffered intensepain as a result of the gunshot, his hospital records indicate that he experienced only a "smallamount of associated bleeding" with the one-centimeter exit and entrance wounds on his leftthigh, denied any loss of consciousness, and was stable upon examination at the hospital.Moreover, his X rays were unremarkable and his condition was deemed "satisfactory" when hechecked himself out of the hospital "against medical advice." Indeed, the victim's aunt testifiedthat she was aware that he "walked out of the hospital after the shooting."
We note that the victim did testify that he has a "lump" on his leg, was given medication forhis pain, required physical therapy to learn to walk again, needed crutches or a cane, and wasunable to engage in sports for "a while" after the injury. There was no evidence presented,however, regarding how long he actually required medication, crutches and the cane; nor wasany evidence proffered on the nature of the physical therapy he underwent or whether heexperienced any continuing or protracted impairments that impacted his activities. Furthermore,despite the victim's testimony that he now walks with a limp, his aunt testified that the victimhad a life-long limp because "[h]e was born with a club[ ] foot," and there was no proof detailingthe extent to which defendant's limp had, in fact, worsened as a result of the shooting.
In short, in the absence of any evidence that the victim's wounds were life-threatening,caused serious and protracted disfigurement or protracted impairment of health or function of abodily organ, "there is [no] valid line of reasoning and permissible inferences which could lead a[*3]rational person to the conclusion reached by the jury on thebasis of the evidence at trial" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Gray, 30 AD3d 771,772-773 [2006], lv denied 7 NY3d 848 [2006]; People v Horton, 9 AD3d 503, 504-505 [2004], lv denied 3NY3d 707 [2004]; see also People vAdames, 52 AD3d 617, 618 [2008]; People v Sleasman, 24 AD3d 1041, 1042-1043 [2005]; Peoplev Castillo, 199 AD2d 276, 276-277 [1993]; cf. People v Golden, 37 AD3d 972, 973 [2007], lv denied 9NY3d 844 [2007]; People v KhuongDinh Pham, 31 AD3d 962, 965-966 [2006]; People v Walker, 279 AD2d 696,697-698 [2001], lv denied 96 NY2d 869 [2001]; People v Lewis, 277 AD2d 603,606-607 [2000], lv denied 95 NY2d 966 [2000]). We therefore reduce defendant'sconviction of assault in the first degree to the lesser included offense of attempted assault in thefirst degree and remit to County Court for resentencing (see Penal Law §§110.00, 120.10 [1]; People v Gray, 30 AD3d at 773).
Lahtinen, Kane, McCarthy and Garry, JJ., concur. Ordered that the judgment is modified, onthe law, by reducing defendant's conviction for assault in the first degree under count four of theindictment to attempted assault in the first degree; vacate the sentence imposed thereon andmatter remitted to the County Court of Schenectady County for resentencing; and, as somodified, affirmed.