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THE EVIDENCE OF PHYSICAL INJURY WAS LEGALLY INSUFFICIENT; ASSAULT SECOND CONVICTION REDUCED TO ATTEMPTED ASSAULT SECOND (FOURTH DEPT).

The Fourth Department, reducing defendant’s assault second conviction to attempted assault second, determined the proof o physical injury was not legally sufficient:

… [T]he evidence is legally insufficient to establish that he caused physical injury to the victim by means of a dangerous instrument and thus that the conviction of assault in the second degree is not supported by legally sufficient evidence … . The evidence, viewed in the light most favorable to the People … , establishes that defendant attempted to stab the victim and the two struggled over the knife; however, the victim suffered no more than minor cuts to her hands that did not require bandaging and caused only transient pain … . … [T]he evidence is legally sufficient to establish defendant’s guilt of the lesser included offense of attempted assault in the second degree … . People v Lopez-Sarmiento,2022 NY Slip Op 04493, Fourth Dept 7-8-22

Practice Point: Here the evidence the victim suffered “physical injury” as defined in the Penal Law was deemed legally insufficient. The assault second conviction was reduced to attempted assault second.

 

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IDENTIFICATION PROCEDURE WAS UNDULY SUGGESTIVE, OFFICER WAS TOLD WHO THE POLICE WERE SEEKING TO IDENTIFY BEFORE VIEWING A SURVEILLANCE VIDEO, ALTHOUGH THE ISSUE WAS NOT PRESERVED FOR APPEAL IN THE MOTION PAPERS, IT IS APPEALABLE BECAUSE COUNTY COURT ADDRESSED IT. 
ENGAGING IN COUNSELING SHOULD NOT BE A CONDITION OF VISITATION; THE COURT SHOULD NOT DELEGATE ITS AUTHORITY TO DETERMINE IF AND WHEN VISITATION SHOULD OCCUR TO A COUNSELOR (FOURTH DEPT). ​
PLAINTIFF IN THIS MED MAL ACTION SHOULD NOT HAVE BEEN PRECLUDED FROM PRESENTING EVIDENCE DECEDENT SHOULD HAVE BEEN GIVEN A BLOOD TRANSFUSION ON THE GROUND THE ISSUE WAS NOT PLED AND PLAINTIFF’S REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WHEN THE DEFENSE INDICATED IT WAS NOT GOING TO CALL THREE DEFENDANTS SHOULD HAVE BEEN GRANTED; DEFENSE VERDICT REVERSED AND NEW TRIAL ORDERED (FOURTH DEPT).
DEPARTMENT OF HUMAN RIGHTS’ DETERMINATION WITHOUT A HEARING IN THIS DISABILITY DISCRIMINATION MATTER WAS NOT ARBITRARY OR CAPRICIOUS AND HAD A RATIONAL BASIS, SUPREME COURT SHOULD NOT HAVE ANNULLED THE DETERMINATION.
THE SOLE REMEDY WHEN A CONVICTION IS DEEMED AGAINST THE WEIGHT OF THE EVIDENCE IS DISMISSAL OF THE INDICTMENT, REDUCTION TO A LESSER INCLUDED OFFENSE IS NOT AVAILABLE.
SUPREME COURT SHOULD NOT HAVE AWARDED ATTORNEY’S FEES AND COSTS TO PREVAILING DEFENDANTS, CRITERIA EXPLAINED.
A WITNESS WHO WOULD HAVE TESTIFIED THE COMPLAINANT IN THIS SEXUAL ABUSE PROSECUTION HAD OFFERED TO GIVE FALSE TESTIMONY ABOUT THE WITNESS’S BOYFRIEND SHOULD HAVE BEEN ALLOWED TO TESTIFY (FOURTH DEPT). ​

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