| People v Rice |
| 2011 NY Slip Op 09042 [90 AD3d 1237] |
| December 15, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Kyle Rice,Appellant. |
—[*1] D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (McDonough, J.), rendered May27, 2009 in Ulster County, upon a verdict convicting defendant of the crime of assault in the firstdegree.
Defendant shot the victim several times at point blank range, injuring him. Out of ninecounts in the ensuing indictment, six were dismissed prior to trial and two were dismissed duringtrial. The jury convicted defendant of the remaining count, assault in the first degree. SupremeCourt sentenced defendant to 15 years in prison, followed by five years of postreleasesupervision. Defendant appeals.
The conviction was supported by legally sufficient evidence and was not against the weightof the evidence. The People had to prove that "[w]ith intent to cause serious physical injury toanother person, [defendant] cause[d] such injury to such person . . . by means of adeadly weapon or a dangerous instrument" (Penal Law § 120.10 [1]). The element truly atissue is whether the victim suffered a serious physical injury, defined as a "physical injury whichcreates 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[*2]organ" (Penal Law § 10.00 [10]).
The victim testified that he and defendant had a disagreement, defendant fired several shotsfrom a handgun in the victim's direction, defendant said "how does that feel?", then the victimnoticed pain and bullet holes in his body. Defendant was standing about three feet away from thevictim at the time. At the emergency room, the victim passed out. He had been shot in his leftthigh, left buttock and right arm; his right humerus was broken by a bullet. Surgeons removedtwo bullets from his body, but left one in his thigh because it was more dangerous to remove it.The victim testified—more than a year after the incident—that he could not fullyextend or straighten his arm and was unable to lift the same amount of weight with that arm as hecould before the incident. A doctor who reviewed the victim's medical records opined that abullet fracturing a humerus could permanently affect the arm, and such limitation on the use ofthe arm would constitute protracted impairment of function of a bodily organ (see PenalLaw § 10.00 [10]). This evidence was legally sufficient to support the conviction (see People v Khuong Dinh Pham, 31AD3d 962, 965-966 [2006]; People v Graham, 297 AD2d 579, 580 [2002], lvdenied 99 NY2d 535 [2002]; compare People v Ham, 67 AD3d 1038, 1039-1040 [2009]; People v Gray, 30 AD3d 771,772-773 [2006], lv denied 7 NY3d 848 [2006]). Although the testimony of theeyewitnesses contained inconsistencies or differed from their prior statements, their testimonywas not incredible as a matter of law (see People v Scanlon, 52 AD3d 1035, 1039 [2008], lvdenied 11 NY3d 741 [2008]). Considering all of the evidence in a neutral light and givingdeference to the jury's credibility determinations, the verdict was not against the weight of theevidence (see People v Pine, 82AD3d 1498, 1500 [2011], lv denied 17 NY3d 820 [2011]; People v Kruppenbacher, 81 AD3d1169, 1174 [2011], lv denied 17 NY3d 797 [2011]).
Based on the callous and casual nature of the crime—firing five or six shots toward afriend at point blank range—the sentence was not harsh or excessive (see People v Dolan, 51 AD3d1337, 1341 [2008], lv denied 12 NY3d 757 [2009]). Defendant's remainingarguments have not been preserved for review, and we decline to exercise our interest of justicejurisdiction.
Mercure, A.P.J., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed.