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ALTHOUGH THE EVIDENCE OF SERIOUS PHYSICAL INJURY WAS INSUFFICIENT, THE EVIDENCE DEFENDANT INTENDED TO INFLICT SERIOUS PHYSICAL INJURY WAS SUFFICIENT; CONVICTIONS REDUCED TO ATTEMPTED GANG ASSAULT, ASSAULT AND ROBBERY (SECOND DEPT).

The Second Department, reducing defendant’s gang assault, assault and robbery convictions to attempted gang assault, assault and robbery, determined the evidence of serious physical injury was insufficient, but the evidence of an intent to inflict serious physical injury was sufficient. The victim was attacked and slashed but no internal organs were injured:

Viewing the evidence in the light most favorable to the prosecution… , we find that the evidence was not legally sufficient to establish the defendant’s guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ … .

However, the evidence at trial also established beyond a reasonable doubt that the defendant acted with the intent to inflict serious physical injury and came “dangerously near” to committing the completed crimes … . Accordingly, we modify the judgment by reducing the defendant’s convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree to attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree, respectively, and we remit the matter to the Supreme Court, Queens County, for sentencing. People v Aragundi, 2021 NY Slip Op 02811, Second Dept 5-5-21

 

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