| People v Nimmons |
| 2012 NY Slip Op 04195 [95 AD3d 1360] |
| May 30, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlexNimmons, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and SuzanneH. Sullivan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered September 17, 2009, convicting him of assault in the second degree and criminalpossession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. Theappeal brings up for review the denial (Lasak, J.), after a hearing (O'Dwyer, J.H.O.), of thatbranch of the defendant's omnibus motion which was to suppress his oral and written statementsto law enforcement officials.
Ordered that the judgment is modified, on the law, by reducing the conviction of assault inthe second degree to assault in the third degree, and vacating the sentence imposed thereon; as somodified, the judgment is affirmed, and the matter is remitted to the Supreme Court, QueensCounty, for resentencing on that count.
Contrary to the defendant's contention, the Supreme Court properly denied that branch of hisomnibus motion which was to suppress his oral and written statements to law enforcementofficials. A review of the totality of the circumstances (see People v Mateo, 2 NY3d 383,413 [2004], cert denied 542 US 946 [2004]; People v Anderson, 42 NY2d 35, 38[1977]) demonstrates that the defendant's oral and written statements to the police, which weregiven after he was informed of, and waived, his Miranda rights (see Miranda vArizona, 384 US 436 [1966]), were voluntarily made (see CPL 60.45 [1]; Peoplev Mateo, 2 NY3d at 414; People v Huntley, 15 NY2d 72 [1965]; People v Seabrooks, 82 AD3d1130, 1130-1131 [2011]).
However, viewed in the light most favorable to the prosecution (see People v Contes,60 NY2d 620, 621 [1983]), the evidence was legally insufficient to support the defendant'sconviction of assault in the second degree, as the People failed to prove beyond a reasonabledoubt that the victim suffered a "serious physical injury" within the meaning of the Penal Law(Penal Law § 10.00 [10]; § 120.05 [4]). The People sought to satisfy the element ofserious physical injury by demonstrating that the gunshot wound sustained by the victim"create[d] a substantial risk of death" (Penal Law § 10.00 [10]). The People, however,failed to present any evidence that would support such a finding. They presented the testimony ofan emergency medical technician (hereinafter the EMT), who described the "potentialconsequences" of gunshot wounds to the chest. The EMT, however, did not [*2]testify as to whether the gunshot wound inflicted here did, in fact,create a substantial risk of death to this victim. Under the circumstances of this case, the EMT'stestimony, along with the victim's medical records, which were not explained or amplified by thetestimony of a health care provider, were legally insufficient to establish that the injury to thisvictim "create[d] a substantial risk of death" (Penal Law § 10.00 [10]). Accordingly, thePeople failed to establish that the victim sustained a serious physical injury within the meaning ofthe Penal Law (id.; see People vTucker, 91 AD3d 1030, 1031-1032 [2012]; see also People v Gray, 30 AD3d 771, 772-773 [2006]; People v Horton, 9 AD3d 503,504-505 [2004]; People v Snyder, 294 AD2d 381, 382 [2002]; People v Matos,107 AD2d 823, 824 [1985]).
As the defendant correctly concedes, the evidence was legally sufficient to support a findingthat the victim suffered a "physical injury" (Penal Law § 10.00 [9]). Accordingly, wereduce the conviction of assault in the second degree to assault in the third degree, vacate thesentence imposed thereon, and remit the matter to the Supreme Court, Queens County, forresentencing on that count. Skelos, J.P., Dickerson, Eng and Leventhal, JJ., concur.