You are here: / / THE EVIDENCE OF “SERIOUS DISFIGUREMENT” WAS LEGALLY INSUFFICIENT;...
, ,

THE EVIDENCE OF “SERIOUS DISFIGUREMENT” WAS LEGALLY INSUFFICIENT; ASSAULT FIRST REDUCED TO ASSAULT SECOND; THE ISSUE WAS NOT PRESERVED (NO TRIAL ORDER OF DISMISSAL MOTION?) BUT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FIRST DEPT).

The First Department, reducing defendant’s assault first conviction to assault second, determined the evidence of serious disfigurement was legally insufficient. The issue was not preserved (no motion for a trial order of dismissal on the issue?) but was considered on appeal in the interest of justice:

The People failed to demonstrate that the victim, who sustained a two-to-three-centimeter laceration on her forehead, which required three stitches and resulted in a small scar, suffered a serious disfigurement … . Accordingly, the convictions on those counts must be vacated. However, because the evidence sufficed to prove that the victim suffered a physical injury (Penal Law § 10.00[9]), we reduce the second-degree assault conviction to third-degree assault (Penal Law § 120.00[1]). People v Murray, 2023 NY Slip Op 06454, First Dept 12-14-23

Practice Point: If there is a “legally insufficient evidence” issue, raise it on appeal even if the issue was not preserved by a motion for a trial order of dismissal. The issue may be addressed in the interest of justice.

 

You might also like
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS ASBESTOS-INJURY CASE SHOULD NOT HAVE BEEN GRANTED, PROPER BURDEN OF PROOF EXPLAINED (FIRST DEPT).
BECAUSE ONLY A CORPORATE ENTITY FORMED BY PLAINTIFF TENANT WAS NAMED ON THE LEASE, PLAINTIFF WAS NOT ENTITLED TO RENT STABILIZATION PROTECTIONS (FIRST DEPT).
THE STIPULATION OF DIVORCE DIVESTED THE HUSBAND OF HIS RIGHTS IN THE MARITAL PROPERTY; THEREFORE THE HUSBAND’S JUDGMENT CREDITOR COULD NOT REACH THE PROPERTY EVEN THOUGH THE HUSBAND’S NAME REMAINED ON THE DEED (FIRST DEPT).
SUBPOENAS RELATING TO CROSS CLAIMS SHOULD NOT HAVE BEEN QUASHED (FIRST DEPT).
THE LAWSUIT ALLEGED ANTITRUST VIOLATIONS, WHICH ARE EXCLUDED FROM COVERAGE, THE PASSING REFERENCES TO PRODUCT DISPARAGEMENT, WHICH WOULD BE COVERED, DID NOT TRIGGER THE DUTY TO DEFEND (FIRST DEPT).
OHIO TRUSTEE’S REQUEST FOR PAYMENT PURSUANT TO A ROYALTY AGREEMENT WITH THE NEW YORK PLAINTIFF DID NOT CONFER JURISDICTION UPON NEW YORK, DESPITE A NEW YORK CHOICE OF LAW PROVISION (FIRST DEPT).
THERE EXISTS A STATUTORY CAUSE OF ACTION FOR AN EMPLOYER’S FAILURE TO ADOPT AND IMPLEMENT A WHISTLEBLOWER POLICY (FIRST DEPT).
DEFENDANT SUFFICIENTLY DEMONSTRATED A PLEA WHICH WOULD NOT RESULT IN MANDATORY DEPORTATION COULD HAVE BEEN WORKED OUT; THE MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST 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

IN A SLIP AND FALL CASE, WHETHER THE CONDITION IS OPEN AND OBVIOUS SPEAKS TO... THE DRIVER’S LICENSE SUSPENSION REFORM ACT (DLSRA), WHICH ELIMINATED LICENSE...