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EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT).

The First Department determined the proof of serious physical injury in this gang assault case was insufficient:

The evidence was legally insufficient to establish that the injuries sustained by the victim constituted serious physical injury (see Penal Law § 10.00[10]), an element of gang assault in the first degree … . Although there was testimony that the victim still had some physical effects of the assault at the time of trial, the evidence on this was limited and, in any event, the record before the jury did not show that the injury was such that a reasonable observer would find the victim’s appearance distressing or objectionable … . It is also undisputed that the victim’s injuries did not impair his general health … . People v Garay, 2018 NY Slip Op 01117, First Dept 2-15-18

CRIMINAL LAW (EVIDENCE, EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT))/PHYSICAL INJURY (CRIMINAL LAW, EVIDENCE, EVIDENCE OF SERIOUS PHYSICAL INJURY INSUFFICIENT IN THIS GANG ASSAULT CASE (FIRST DEPT))

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NO NEED TO SPECIFY CRIME TO BE COMMITTED DURING A CHARGED BURGLARY IN THE SUPERIOR... DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT THE SORA HEARING, NEW HEARING...