People v Everett

People v Everett 2013 NY Slip Op 06954 Decided on October 24, 2013 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 October 24, 2013
Sweeny, J.P., Renwick, Feinman, Clark, JJ.
10865 6515/10

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

v

Herman Everett, Defendant-Appellant.




Law Offices of Leslie H. Ben-Zvi, New York (Leslie H. Ben-
Zvi of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Susan
Axelrod of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered December 16, 2011, convicting defendant, after a nonjury trial, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

The verdict was based on legally sufficient evidence (see People v Danielson, 9 NY3d 342, 349 [2007]). The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim's permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ (see People v Lanier, 44 AD3d 547 [1st Dept 2007], lv denied 9 NY3d 1035 [2008]; People v Howard, 79 AD2d 1064 [3rd Dept 1981]). Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious (see e.g. People v Rosado, 88 AD3d 454, 455 [2011], lv denied 18 NY3d 928 [2012]), this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.

Furthermore, the victim's loss of four front teeth also constituted a "serious and protracted disfigurement," since "a reasonable observer would find her altered appearance distressing or objectionable" (People v McKinnon, 15 NY3d 311, 315 [2010]; see also People v Snyder, 100 AD3d 1367, 1368 [4th Dept 2012], lv denied 21 NY3d 1010 [2013][disfiguring dental injuries]). The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the [*2]disfigurement will be readily apparent.

We have considered and rejected defendant's remaining arguments.

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

ENTERED: OCTOBER 24, 2013

CLERK