| People v Tucker |
| 2012 NY Slip Op 00136 [91 AD3d 1030] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Darryl G.Tucker, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of St. Lawrence County(Richards, J.), rendered July 20, 2009, upon a verdict convicting defendant of the crimes of gangassault in the first degree, gang assault in the second degree, assault in the first degree and assaultin the second degree.
The victim was walking with several other college students when they were confronted bydefendant and his codefendants, Roody Dorfeuille and Jevaughn Francis. Dorfeuille punched thevictim in the chest, defendant punched him in the face and Francis kicked the victim in the headas he fell. Defendant and Dorfeuille continued to hit the victim while he was on the ground.When the assault ended, the victim realized that he had been stabbed.
A seven-count indictment charged all three defendants with attempted murder and gangassault and assault in the first and second degrees. A jury found defendant andDorfeuille[FN1]guilty of gang assault in the first and second degrees and assault in the first and second degrees,and found Francis guilty of assault in the second degree.[FN2]County Court sentenced defendant to [*2]concurrent terms of 12years in prison followed by five years of postrelease supervision for both gang assault in the firstdegree and assault in the first degree, seven years followed by five years of postreleasesupervision for gang assault in the second degree, and seven years followed by three years ofpostrelease supervision for assault in the second degree. Defendant appeals.
Initially, as the People concede, gang assault in the second degree is a lesser included offenseof gang assault in the first degree, and assault in the second degree is a lesser included offense ofassault in the first degree. Hence, County Court should have submitted the lesser included countsto the jury in the alternative (see CPL 300.40 [3] [b]; 300.50 [4]). After the verdict wasrendered, County Court should have dismissed the counts charging lesser included offenses.Accordingly, although no party raised this issue before the trial court, we now dismiss thosecounts in the interest of justice (seePeople v Horton, 46 AD3d 1225, 1228 [2007], lv denied 10 NY3d 766 [2008]).
The evidence was legally insufficient to prove that the victim suffered a serious physicalinjury. That term—an element of assault in the first degree and gang assault in the first andsecond degrees (see Penal Law §§ 120.06, 120.07, 120.10 [1])—isdefined as a "physical injury which creates a substantial risk of death, or which causes death orserious and protracted disfigurement, protracted impairment of health or protracted loss orimpairment of the function of any bodily organ" (Penal Law § 10.00 [10]). The victimsuffered eight stab wounds. Although they all bled, at least seven of them were described bydoctors as superficial. The most serious wound was approximately four inches long and 2½inches deep and transected the victim's rectus abdominis muscle, but the bleeding was stoppedwith a few sutures. At the hospital, the victim was alert, never lost consciousness, was not inshock, no internal organs were punctured, his blood loss was not massive and his vital signs wereessentially normal throughout his time in the hospital. The treating emergency room physiciantestified that the wounds collectively "could[ ] have caused substantial risk of death," but he didnot further explain that opinion or state that the wounds actually did create such a substantialrisk. The surgeon who sutured the wounds testified that it was "possible" that the victim'scollective wounds would have been fatal if the injuries had all gone untreated. But he alsotestified that had the most serious wound and the nearest wound to it been left untreated, theyprobably would not have been fatal. Considering the victim's actual injuries, rather than merepossibilities or what could have happened, the evidence was insufficient to establish that thevictim's injuries created a substantial risk of death (see People v Sleasman, 24 AD3d 1041, 1042-1043 [2005];People v Rucker, 94 AD2d 948 [1983]).
The other categories of serious physical injury were also not established. The victimdisplayed his chest scars to the jury, and he also had scars on his back, but the record does notcontain any pictures or descriptions of what the jury saw so as to prove that these scars constituteserious or protracted disfigurement (seePeople v McKinnon, 15 NY3d 311, 316 [2010]). The victim testified that he took painmedication for a few weeks and continued to feel some pain thereafter, but that he wascompletely pain free about 2½ months after the incident. He testified that his injuries haveaffected his ability to throw a ball and swing a baseball bat, but he did not elaborate on theseeffects and he still intended to try out for his college baseball team. No medical evidence wassubmitted to link his diminished baseball skills to his injuries, as opposed to his reduced abilityto practice after receiving his injuries. There was no proof of protracted impairment of health orfunction of bodily organs. Thus, the People failed to prove that the victim suffered a seriousphysical injury (see People v Felipe,79 AD3d 1454, 1455 [2010]; People v Ham, 67 AD3d 1038, 1040 [2009]; People v Gray, 30 AD3d 771,772-773 [2006], lv [*3]denied 7 NY3d 848 [2006]).
The evidence was sufficient to show that defendant, acting in concert with two or more otherpersons who were actually present, intended to inflict serious physical injury and engaged inconduct toward the victim that could have resulted in serious physical injury—although itonly resulted in physical injury—through use of a deadly weapon or dangerous instrument.Therefore, the conviction of gang assault in the first degree should be reduced to attempted gangassault in the first degree and the conviction of assault in the first degree should be reduced toattempted assault in the first degree (see Penal Law §§ 110.00, 120.07,120.10 [1]; People v Gray, 30 AD3d at 773; People v Sleasman, 24 AD3d at1043). We must remit for County Court to impose sentence on those reduced counts (seeCPL 470.20 [4]).
Mercure, A.P.J., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the judgment ismodified, on the law and as a matter of discretion in the interest of justice, by (1) reversingdefendant's convictions for gang assault in the second degree under count 5 of the indictment andassault in the second degree under count 7 of the indictment and (2) reducing defendant'sconvictions for (a) gang assault in the first degree under count 4 of the indictment to attemptedgang assault in the first degree and (b) assault in the first degree under count 6 of the indictmentto attempted assault in the first degree; counts 5 and 7 dismissed, the sentences imposed oncounts 4, 5, 6 and 7 vacated, and matter remitted to the County Court of St. Lawrence County forresentencing on counts 4 and 6; and, as so modified, affirmed.
Footnote 1: Dorfeuille's appeal is decidedherewith.
Footnote 2: This Court affirmed Francis'sconviction (People v Francis, 83AD3d 1119 [2011], lv denied 17 NY3d 806 [2011]).