| People v Messam |
| 2012 NY Slip Op 08245 [101 AD3d 407] |
| December 4, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ronald Messam, Appellant. |
—[*1] Ronald Messam, appellant pro se. Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered July 28,2010, convicting defendant, after a jury trial, of assault in the second and third degrees, attemptedassault in the third degree, and criminal mischief in the second and fourth degrees, andsentencing him, as a second violent felony offender, to a term of 3 to 6 years on thesecond-degree criminal mischief conviction, to be served consecutively to an aggregate term ofseven years on the remaining convictions, unanimously affirmed.
Contrary to defendant's argument, his conviction was based on legally sufficient evidenceand was not against the weight of the evidence. The conviction of assault in the second degreerequired the People to prove beyond a reasonable doubt that the victim suffered a "seriousphysical injury" (Penal Law § 120.05 [1]), a term that the Penal Law defines as "physicalinjury which 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" (Penal Law § 10.00 [10]). Although the question of whether there wasserious physical injury is generally a factual issue for the jury, "there is an objective level. . . below which the question is one of law" (see People v Oquendo, 134AD2d 203, 203 [1987], lv denied 70 NY2d 959 [1988] [citation omitted] [addressing"impairment of physical condition or substantial pain" under the analogous Penal Law §10.00 (9)]).
Here, the evidence established that defendant violently assaulted the victim during hisrampage in a hospital by punching her in the face several times, breaking her nose, damaging herteeth and causing pain in her jaw that persisted until the trial. She described the pain as a "10 outof 10" shortly after the assault and she was fearful of opening her jaw as wide as possible whenshe yawned, lest it lock. Thus, she sustained a serious physical injury because she stillexperienced pain in her jaw while eating, two years after the assault. This constituted "protracted. . . impairment of the function of [a] bodily organ" and "protracted impairment ofhealth" (Penal Law § 10.00 [10]; see also People v Corbin, 90 AD3d 478, 479 [2011], lvdenied 19 NY3d 972 [2012]).[*2]
We also reject defendant's challenge to the sufficiencyand weight of the evidence supporting his second-degree criminal mischief conviction. Theevidence supports a reasonable inference that the damage caused by defendant required thereplacement of six glass panes at a total cost in excess of the statutory threshold.
Defendant's pro se claims are without merit. Concur—Mazzarelli, J.P., Moskowitz,Richter, Abdus-Salaam and Feinman, JJ.