You are here: / / ALTHOUGH THE VICTIM WAS SHOT AND THE BULLET PASSED THROUGH HIS LEG, THE...
,

ALTHOUGH THE VICTIM WAS SHOT AND THE BULLET PASSED THROUGH HIS LEG, THE PROOF REQUIREMENTS FOR SERIOUS PHYSICAL INJURY WERE NOT MET; ASSAULT SECOND CONVICTIONS REDUCED TO ASSAULT THIRD (THIRD DEPT).

The Third Department determined that although the victim had been shot, the evidence of serious physical injury was insufficient. The court reduced the assault second convictions to assault third:

The victim asserted that the bullet entered through the back of the leg just below the kneecap and exited through the front of the leg just above the kneecap. * * *

There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim’s injuries caused a substantial risk of death or were life threatening” … . Similarly, the evidence failed to show “that the victim suffered from a protracted impairment of health or protracted loss or impairment of the function of a bodily organ” … . Although there was testimony regarding the long-term effects of the gunshot wound, no corresponding medical documentation was submitted as proof of the link between the impairment and the initial injury … . Further, although the victim testified that he had two circular scars from the bullet, this testimony alone is not sufficient to support a finding of serious disfigurement … . To prove that the victim’s scars were a serious disfigurement would have required the People to make a record of it, via either a photograph or a detailed description; here, however, the testimony establishes “no more than that the victim had two scars” … .

Although the evidence “falls short of satisfying the statutory definition of serious ‘physical injury'” … , there is no dispute that the victim sustained a “physical injury” (Penal Law § 10.00 [9]). People v Smith, 2021 NY Slip Op 02564, Third Dept 4-29-21

 

You might also like
FOR CAUSE CHALLENGE TO JUROR SHOULD HAVE BEEN GRANTED.
IN THIS MODIFICATION OF CUSTODY PROCEEDING, MOTHER’S PROOF OF THE CHILD’S INJURIES IN FATHER’S CARE AND HER IMPROVED PARENTING SKILLS AND LIVING CONDITIONS WAS SUFFICIENT TO WITHSTAND FATHER’S MOTION TO DISMISS; THE JUDGE APPEARS TO HAVE PREJUDGED THE CASE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).
PHARMACEUTICALS COURIERS WERE EMPLOYEES.
PETITIONER’S PISTOL PERMIT WAS NOT REVOKED FOR DOMESTIC VIOLENCE; THEREFORE THE FACT THAT THE PERMIT HAD BEEN REVOKED IN THE PAST, STANDING ALONE, WAS NOT “GOOD CAUSE” FOR DENIAL OF THE INSTANT PETITION FOR REINSTATEMENT OF THE PERMIT; MATTER REMITTED (THIRD DEPT).
CONTRARY TO SUPREME COURT’S RULING, THE REAL ESTATE PURCHASE AGREEMENT, BY ITS TERMS, DECLARED THE CONTRACT CANCELLED IF THE INSPECTION REVEALED PROBLEMS AND THE PARTIES DID NOT AGREE ON HOW TO ADDRESS THOSE PROBLEMS WITHIN TEN DAYS; THE INSPECTION IN FACT REVEALED PROBLEMS AND NO AGREEMENT ON RESOLUTION WAS MADE WITHIN THE ALOTTED TEN DAYS (THIRD DEPT). ​
FATHER WAS NOT AWARE FINAL HEARING ON TERMINATION OF HIS PARENTAL RIGHTS HAD BEEN SCHEDULED; HOLDING TERMINATION PROCEEDINGS IN HIS ABSENCE CONSTITUTED A DENIAL OF DUE PROCESS.
THE SEARCH WAS NOT A VALID INVENTORY SEARCH; THE HANDGUN FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).
THE EXTENDED STATUTE OF LIMITATIONS IN THE CHILD VICTIMS ACT DOES NOT APPLY TO CIVIL RIGHTS CAUSES OF ACTION PURSUANT TO 42 USC 1983; THE DUTY TO REPORT CHILD ABUSE UNDER THE SOCIAL SERVICES LAW APPLIES ONLY TO “PERSONS LEGALLY RESPONSIBLE” FOR THE CARE OF THE CHILD, WHICH DOES NOT INCLUDE TEACHERS (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

VEHICULAR MANSLAUGHTER AND ASSAULT CONVICTIONS DISMISSED AS INCLUSORY CONCURRENT... QUESTIONS OF FACT ABOUT WHETHER THE INSURER IS ESTOPPED FROM DENYING COVERAGE...