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THE JURY’S FINDING THAT THE VICTIM SUFFERED “SERIOUS INJURY” WITHIN THE MEANING OF THE ASSAULT SECOND STATUTE WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing defendant’s assault second conviction, determined the jury’s conclusion that the victim suffered “serious injury” was against the weight of the evidence:

Although the victim testified that he sustained a skull fracture … , the People also introduced expert medical testimony establishing that he did not have a skull fracture. In addition, although the victim testified to ongoing memory issues, there is evidence in the record establishing that he had several other concussions that could also have caused those issues, including one that occurred when he was struck by a metal bat only a few months after this incident. Consequently, we cannot conclude that “the jury was justified in finding . . . defendant guilty beyond a reasonable doubt” … . People v Defio, 2021 NY Slip Op 07400, Fourth Dept 12-23-21

 

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