| People v Payne |
| 2014 NY Slip Op 01510 [115 AD3d 439] |
| March 6, 2014 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Brian Payne, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), renderedFebruary 8, 2010, as amended February 11, 2010, convicting defendant, after a jury trial,of robbery in the first degree and assault in the first degree, and sentencing him, as apersistent violent felony offender, to concurrent terms of 20 years to life, unanimouslyaffirmed.
The verdict was based on legally sufficient evidence and was not against the weightof the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). The element of serious physicalinjury was established by evidence that defendant inflicted a puncture wound thatpenetrated the victim's cheek and sinus, resulting in permanent nerve damage. At the timeof trial, long after the attack, the victim continued to experience significant numbnessand abnormal sensations in her mouth and face that went well beyond mere discomfort.Accordingly, the injuries qualified as "protracted impairment of health" (Penal Law§ 10.00 [10]; see People v Askerneese, 256 AD2d 34 [1st Dept 1998],affd 93 NY2d 884 [1999]).
Defendant's right of confrontation was not violated by testimony by the People'sexpert DNA analyst that referred to data gathered by nontestifying technicians (see People v Brown, 13 NY3d332 [2009]; People vVargas, 99 AD3d 481 [1st Dept 2012], lv denied 21 NY3d 1011 [2013];see also Williams v Illinois, 567 US —, —, 132 S Ct 2221,2242-2244 [2012]). In any event, any error in receiving this evidence was harmless(see People v Crimmins, 36 NY2d 230 [1975]). Concur—Mazzarelli, J.P.,Sweeny, Renwick, Freedman and Gische, JJ.