| People v Trombley |
| 2012 NY Slip Op 05565 [97 AD3d 903] |
| July 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RickyTrombley, Appellant. |
—[*1] Kristy L. Sprague, District Attorney, Elizabethtown (Brian W. Felton of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered April 5, 2011, upon a verdict convicting defendant of the crime of assault in the seconddegree and the traffic infraction of consumption or possession of alcohol in a motor vehicle on ahighway.
In December 2009, defendant and the victim engaged in an argument, which ended withdefendant striking the victim in the face with his fist. The victim sustained two lacerations to hisface, one below his lip and another below his chin. As a result, defendant was subsequentlyindicted and, after a jury trial, convicted of, among other things, assault in the second degree.Defendant was sentenced, as a second violent felony offender, to 6½ years in prison, plustwo years of postrelease supervision, and he now appeals.
As relevant here, a person is guilty of assault in the second degree when, "[w]ith intent tocause serious physical injury to another person, he [or she] causes such injury to such person orto a third person" (Penal Law § 120.05 [1]). Serious physical injury is defined as a physicalinjury that creates a substantial risk of death, or which causes death or serious and protracteddisfigurement, protracted impairment of health or protracted loss or impairment of the functionof any bodily organ (see Penal Law § 10.00 [10]). Here, the People simply allegedthat the two [*2]scars on the victim's face resulting from thisassault, the larger one located under his lower lip being approximately one inch long, constituteda serious and protracted disfigurement and, therefore, qualified as a serious physical injury.
The Court of Appeals has held that "[a] person is 'seriously' disfigured when a reasonableobserver would find [his or] her altered appearance distressing or objectionable. The standard isan objective one, but we do not imply that the only relevant factor is the nature of the injury; theinjury must be viewed in context, considering its location on the body and any relevant aspects ofthe victim's overall physical appearance" (People v McKinnon, 15 NY3d 311, 315 [2010]). Although thevictim's scars are on his face, given their relatively small size, location and appearance, wecannot conclude that they are "objectively 'distressing or objectionable' " (People v Stewart, 18 NY3d 831,832 [2011], quoting People v McKinnon, 15 NY3d at 315; compare People v Nesbitt, 89 AD3d447, 450 [2011]). Therefore, the evidence was legally insufficient to establish that the victimsustained a serious physical injury in this assault (see Penal Law § 120.05 [1]).Under the circumstances presented herein, we reduce defendant's conviction of assault in thesecond degree to assault in the third degree (see Penal Law § 120.00 [1]; People v Rosado, 88 AD3d 454,455 [2011], lv denied 18 NY3d 928 [2012]; People v Felipe, 79 AD3d 1454, 1456 [2010]).
Extended discussion of defendant's remaining claims is not warranted. Specifically, CountyCourt did not err by permitting the victim's treating physician to describe how the injuriesappeared when he treated the victim shortly after this incident or in allowing the jury to viewphotographs of the victim's injuries that were taken immediately after his encounter withdefendant (see generally People v Wood, 79 NY2d 958, 960 [1992]). The court also didnot deprive defendant of a fair trial by precluding questioning of the victim about the alleged useof a weapon during the incident.
Rose, J.P., Spain, Malone Jr. and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by reducing defendant's conviction of assault in the second degree undercount 4 of the indictment to assault in the third degree; vacate the sentence imposed thereon andmatter remitted to the County Court of Essex County for resentencing; and, as so modified,affirmed.