| People v Rosado |
| 2011 NY Slip Op 06936 [88 AD3d 454] |
| October 4, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AdanRosado, Appellant. |
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Cyrus R. Vance, Jr., District Attorney, New York (Dana Poole of counsel), forrespondent.
Judgment, Supreme Court, New York County (Analisa Torres, J.), rendered September 2,2010, convicting defendant, after a jury trial, of gang assault in the second degree, and sentencinghim to a term of five years, unanimously modified, on the law, to the extent of reducing theconviction to assault in the third degree and remanding for resentencing.
The evidence was legally insufficient to establish that either the broken nose or the threechipped teeth sustained by the victim constituted serious physical injury, an element of gangassault in the second degree. Neither of these injuries "creat[ed] a substantial risk of death, or. . . caus[ed] death or serious and protracted disfigurement, protracted impairmentof health or protracted loss or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]).
It is uncontroverted that, following successful reconstructive surgery, neither the functioningof the victim's nose nor his general health was impaired as a result of the fracture. Theindentation in the victim's nose following surgery, while qualifying as "disfigurement" (see Fleming v Graham, 10 NY3d296, 301 [2008]), cannot be said to fall within the definition of "serious disfigurement.""Serious disfigurement" requires something more, and is established only upon proof that "areasonable observer would find [the injured person's] altered appearance distressing orobjectionable" (People vMcKinnon, 15 NY3d 311, 315 [2010]). No such evidence was presented at trial.
The People also argue that the victim's three chipped teeth rise to the level of serious physicalinjury, based on testimony that the plastic material used to replace the chipped enamel had to bereplaced approximately every 10 years and that darkening of the affected teeth and improperhealing of the nerves was "possible." However, the need for maintenance at relatively longintervals does not constitute serious disfigurement, or an impairment to the victim's health or thefunctioning of his teeth. Finally, while a likelihood of adverse effects on appearance, [*2]functionality, or overall health may qualify as serious physicalinjury, the mere possibility of such consequences does not.
In view of this determination, we need not reach defendant's remaining claims.Concur—Andrias, J.P., Friedman, Renwick, Richter and Manzanet-Daniels, JJ.