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
THE 2009 ROBERTS CASE APPLIES RETROACTIVELY TO RENT OVERCHARGES STEMMING FROM THE RENTAL OF DEREGULATED APARTMENTS BY LANDLORDS RECEIVING J-51 TAX BENEFITS; THE OVERCHARGES HERE MUST BE RE-CALCULATED IN ACCORDANCE WITH A RECENT RULING BY THE COURT OF APPEALS; THE CLASS OF TENANTS IN THIS RENT OVERCHARGE ACTION SHOULD NOT HAVE BEEN EXPANDED BY SUPREME COURT (FIRST DEPT).
PLAINTIFF ALLEGED THE LANDLORD’S FAILURE TO REPAIR SHOWER-CURTAIN BRACKETS CREATED THE DANGEROUS WATER-ON-THE-FLOOR CONDITION WHICH CAUSED THE SLIP AND FALL; AN OPEN AND OBVIOUS CONDITION CAN STILL BE A DANGEROUS CONDITION; LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Although the Elevator Maintenance Company May Have Been Negligent, Under “Espinal,” the Company Did Not Owe a Duty of Care to the Plaintiff—There Was No Evidence the Maintenance Company “Launched an Instrument of Harm,” the Only Available Theory of Liability (Re: Plaintiff) Which Could Have Arisen from the Maintenance Contract
THE PROBATION CONDITION PROHIBITING ASSOCIATION WITH GANGS WAS STRICKEN BECAUSE THE CONDITION WAS NOT RELEVANT TO THE UNDERLYING OFFENSE OR DEFENDANT’S REHABILITATION; THE ISSUE SURVIVES A WAIVER OF APPEAL AND A LACK OF PRESERVATION (FIRST DEPT).
JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND VACATED THE DEFAULT JUDGMENT, ALTHOUGH A SUA SPONTE ORDER IS NOT APPEALABLE AS OF RIGHT, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT). ​
PLAINTIFF WAS SHOT INSIDE DEFENDANT’S BUILDING, DEFENDANT LANDLORD DEMONSTRATED IT DID NOT HAVE NOTICE OF AN ALLEGED BROKEN LOCK, THE EVIDENCE DID NOT DEMONSTRATE THE ASSAILANT WAS AN INTRUDER AS OPPOSED TO AN INVITED GUEST, AND THERE WAS EVIDENCE PLAINTIFF WAS THE VICTIM OF A TARGETED ATTACK, DEFENDANT LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
THE DUCT ON THE FLOOR WAS AN INTEGRAL PART OF THE DEMOLITION WORK, THEREFORE LABOR LAW 241 (6) DID NOT APPLY; THE DEFENDANT DID NOT SUPERVISE OR CONTROL PLAINTIFF’S WORK, THEREFORE LABOR LAW 200 DID NOT APPLY (FIRST DEPT).
A JUROR WHO WAS A RETIRED DETECTIVE ACTED AS AN UNSWORN EXPERT WITNESS IN THE DELIBERATIONS; “MOLINEUX” EVIDENCE DEFENDANT LOOKED AT PORNOGRAPHY BEFORE ALLEGEDLY COMMITTING THE SEX-RELATED OFFENSES SHOULD NOT HAVE BEEN ADMITTED (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 © 2026 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...