People v Montimaire

People v Montimaire 2012 NY Slip Op 00027 Decided on January 5, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 5, 2012
Andrias, J.P., Friedman, DeGrasse, Freedman, Manzanet-Daniels, JJ.
6036 5441/08

[*1]The People of the State of New York, Respondent,

v

Joseph Montimaire, Defendant-Appellant.




Steven Banks, The Legal Aid Society, New York (Lorca
Morello of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Yuval
Simchi-Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 10, 2009, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of 5 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). An emergency room doctor's testimony established the element of serious physical injury.

Defendant inflicted a stab wound that caused profuse bleeding. This caused the victim's blood pressure to fall to a dangerous level, so that he urgently required a massive blood transfusion and saline irrigation to stabilize his blood pressure and heart rate. The doctor testified that she acted extraordinarily quickly because she was concerned that the victim might lose so much blood as to endanger his life. The evidence warranted the conclusion that the injury created a substantial risk of death (see e.g. People v Jones, 38 AD3d 352, lv denied 9 NY3d 846 [2007]; People v Almonte, 7 AD3d 324, lv denied 3 NY3d 670 [2004]; People v Gordon, 257 AD2d 533 [1999], lv denied 93 NY2d 899 [1999]), even though the doctor never used that particular language.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 5, 2012

CLERK