| People v Armstrong |
| 2015 NY Slip Op 01335 [125 AD3d 1493] |
| February 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Earlwood Armstrong, Appellant. |
Linda M. Campbell, Syracuse, for defendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered November 3, 2010. The judgment convicted defendant, upon a juryverdict, of gang assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified as amatter of discretion in the interest of justice and on the law by reducing the conviction toattempted gang assault in the first degree and vacating the sentence and as modified thejudgment is affirmed, and the matter is remitted to Supreme Court, Onondaga County,for sentencing.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of gang assault in the first degree (Penal Law § 120.07). Theevidence presented by the People established that an escalating conflict betweendefendant and the victim during a party inside the victim's apartment ended in a fightoutside the apartment. During the fight, the victim was kicked and punched by defendantand three other assailants, and was struck in the head with an object by one of the otherassailants. After being struck in the head, the victim fell to the ground, where the attackcontinued. Prior to the fight, the three other assailants had agreed to help defendant fightthe victim.
Defendant contends that the evidence is legally insufficient to establish that thevictim sustained a serious physical injury, a necessary element of gang assault in the firstdegree. That term is defined as "physical injury which creates a substantial risk of death,or which causes death or serious and protracted disfigurement, protracted impairment ofhealth or protracted loss or impairment of the function of any bodily organ" (Penal Law§ 10.00 [10]). Although defendant failed to preserve his contention for ourreview by failing to renew his motion for a trial order of dismissal after presentingevidence (see People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97NY2d 678 [2001]), we nevertheless exercise our power to review that contention as amatter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Viewingthe evidence in the light most favorable to the People, we conclude that no" 'rational trier of fact could have found the essential elements of the crimebeyond a reasonable doubt' " (People v Contes, 60 NY2d 620, 621[1983]).
Resolution of the issue whether the victim sustained a serious physical injurydepends upon the nature of "the victim's actual injuries, rather than merepossibilities or what could have happened" (People v Tucker, 91 AD3d 1030, 1032 [2012], lvdenied 19 NY3d 1002 [2012] [emphasis added]; see People v Nimmons, 95 AD3d 1360, 1360-1361 [2012],lv denied 19 NY3d 1028 [2012]). The evidence at trial concerning the victim'sinjuries mainly consisted of the testimony of the victim and his treating physician, andseveral photographs of the victim. That evidence established that, as a result of the fight,the victim sustained a two- to three-inch laceration on the back of his head, associatedswelling and a hematoma, and other superficial injuries. A CT scan revealed nothingmore serious than "soft tissue swelling of the scalp," although prior to that scan, thetreating physician acknowledged that the injuries could have been consideredlife-threatening. For [*2]treatment, staples were used toclose the laceration, and the victim was prescribed antibiotics and painkillers; he wasreleased from the hospital shortly after his arrival. The laceration left a scar onthe back of the victim's head. Considering his actual injuries, we conclude that thevictim's wounds were not so severe as to "create[ ] a substantial risk of death" within themeaning of Penal Law § 10.00 (10) (see Tucker, 91 AD3d at 1032;see also People v Madera,103 AD3d 1197, 1198 [2013], lv denied 21 NY3d 1006 [2013]).
We also conclude that the People failed to present evidence establishing that thevictim's injuries resulted in "serious and protracted disfigurement" (Penal Law§ 10.00 [10]). When "viewed in context, considering its location on thebody and any relevant aspects of the victim's overall physical appearance," we cannot saythat the scar on the victim's head would cause a reasonable observer to "find [his] alteredappearance distressing or objectionable" (People v McKinnon, 15 NY3d 311, 315 [2010]). The merepresence of a scar, standing alone, is insufficient to establish serious disfigurement (see People v Stewart, 18 NY3d831, 832 [2011]; McKinnon, 15 NY3d at 316; People v Trombley, 97 AD3d903, 903-904 [2012]). Moreover, the record does not indicate whether the jury wasever formally shown the victim's scar, and we cannot simply infer "that whatever the jurysaw must have supported its verdict" (McKinnon, 15 NY3d at 316; see generally People vMazariego, 117 AD3d 1082, 1083 [2014]; People v Brown, 100 AD3d 1035, 1036 [2012], lvdenied 20 NY3d 1009 [2013], reconsideration denied 21 NY3d 911 [2013]).Moreover, the evidence did not establish that the victim's injuries resulted in "protractedimpairment of health or protracted loss or impairment of the function of any bodilyorgan" (Penal Law § 10.00 [10]; see People v Phillip, 279 AD2d802, 803-804 [2001], lv denied 96 NY2d 905 [2001]; see also Stewart, 18NY3d at 832-833).
Nevertheless, we conclude that the evidence is legally sufficient to support aconviction of attempted gang assault in the first degree because the evidence establishesthat defendant, while acting in tandem with the three assailants who were actuallypresent, intended to inflict serious physical injury on the victim, but actually inflictedonly physical injury (see Mazariego, 117 AD3d at 1083; Tucker, 91AD3d at 1032). Contrary to defendant's contention, the People established defendant'sintent to inflict serious physical injury. "The natural and probable consequences ofrepeatedly striking a man while he is on the ground defenseless is that he will sustainserious physical injury within the meaning of Penal Law § 10.00 (10)" (People v Meacham, 84 AD3d1713, 1714 [2011], lv denied 17 NY3d 808 [2011]). Moreover, the proofadduced at trial established that defendant came " 'dangerously near' " tocommitting the completed crime (People v Kassebaum, 95 NY2d 611, 618[2001], rearg denied 96 NY2d 854 [2001], cert denied 532 US 1069[2001]; see also Penal Law § 110.00). We therefore modify thejudgment by reducing the conviction of gang assault in the first degree to attempted gangassault in the first degree (Penal Law §§ 110.00, 120.07), and we remitthe matter to Supreme Court for sentencing on that reduced count (see CPL470.20 [4]; Tucker, 91 AD3d at 1032).
We have reviewed the remaining contentions raised by defendant and conclude thatnone warrants further modification or reversal. Present—Scudder, P.J., Smith,Centra, Lindley and Valentino, JJ.