| People v Lormil |
| 2015 NY Slip Op 09303 [134 AD3d 958] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Shanice Lormil, Appellant. |
Lynn W.L. Fahey, New York, NY (John B. Latella of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove andThomas M. Ross of counsel; Craig Marinaro on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(McKay, J.), rendered October 22, 2012, convicting her of gang assault in the seconddegree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the sentence imposed;as so modified, the judgment is affirmed, and the matter is remitted to the SupremeCourt, Kings County, for further proceedings consistent herewith.
The defendant contends that the evidence of serious physical injury adduced at trialwas legally insufficient to support her conviction of gang assault in the second degree.However, the complainant's testimony, coupled with the complainant's physician'stestimony, established that the complainant's jaw was fractured in two places and orbitalbone was fractured. The recovery period for her injuries was lengthy and painful. Herjaw was wired shut for six weeks, she could not eat solid foods during that time, and shelost 20 pounds as a result. Viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it waslegally sufficient to establish that the complainant sustained a serious physical injurywithin the meaning of Penal Law § 10.00 (10) (see People v Johnson, 50AD3d 1537, 1537-1538 [2008]; Matter of Tirell R., 33 AD3d 804, 805 [2006]; People vDavis, 191 AD2d 705, 706 [1993]). Moreover, upon the exercise of our factualreview power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt wasnot against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Lindsay, 131 AD3d625, 626 [2015]).
The defendant contends, and the People correctly concede, that the Supreme Courtfailed to determine whether she should be afforded youthful offender status (seeCPL 720.20 [1]). The parties are correct that the record does not demonstrate that theSupreme Court considered whether to adjudicate the defendant a youthful offender.Accordingly, the defendant's sentence must be vacated and the matter remitted to theSupreme Court, Kings County, for resentencing after determining whether the defendantshould be sentenced as a youthful offender (see People v Dawkins, 131 AD3d 482, 483 [2015]; People v Then, 121 AD3d1025, 1026 [2014]). We express no opinion as to whether the Supreme Court shouldafford youthful offender status to the defendant (see People v Dawkins, 131AD3d at 483; People v Then, 121 AD3d at 1026). Leventhal, J.P., Dickerson,Maltese and Duffy, JJ., concur.