“Serious Physical Injury” Element of Gang Assault Not Supported by Legally Sufficient Evidence

The Second Department determined the evidence of the “serious physical injury” element of the gang assault charge was not supported by legally sufficient evidence:

The defendant challenges his conviction of gang assault in the first degree, asserting that the People failed to present legally sufficient evidence that [the victim] suffered a “serious physical injury,” which is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10]). * * *

Although [the victim] was stabbed in the right flank, his wounds required no stitches, and there was no evidence that he suffered any permanent damage to his kidney, which suffered a small laceration. Moreover, when he was examined, [the victim] was oriented and alert, able to converse, and had normal vital signs and blood pressure. Further, the only evidence of protracted disfigurement or impairment of health was that he had a scar, which the jury saw, and that he felt pain on the scar. The record, however, includes no description of the scar or what, if any, limitations [the victim] suffered as a result of his injury. Thus, the People failed to adduce legally sufficient evidence that [the victim] suffered a “serious physical injury” within the meaning of Penal Law § 10.00(10), which is an element of gang assault in the first degree … . People v Mazariego, 2014 NY Slip Op 03863, 2nd Dept 5-28-14