The People v. Donald McKinnon
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 163
The People &c.,
Respondent,
v.
Donald McKinnon,
Appellant.
Nathaniel S. Boyer, for appellant.
Jason S. Whitehead, for respondent.
SMITH, J.:
We hold that the evidence was insufficient to support
defendant's conviction for first degree assault, because it did
not show that the victim of the assault was "seriously"
disfigured.
I
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No. 163
The victim was an inspector for the New York City
Department of Health and Mental Hygiene.
On the day in question,
she went to inspect a summer camp at a Bronx storefront church.
When she arrived, the camp was not yet open, but defendant, who
lived in the building, let her in and began to chat with her.
A
few minutes later, defendant put an arm around the victim's neck
and choked her.
She lost consciousness briefly.
When she
revived, defendant again choked her with one arm, while holding a
knife in his other hand; he tried to drag her into a hallway.
Defendant put the knife down on a stool, and the victim grabbed
it and began to stab him over her shoulder.
Defendant responded
by biting the victim twice on the inner forearm, leaving marks
that we describe in detail below.
The victim escaped into the
street, and defendant ran away, taking the victim's cellphone
with him.
He was arrested later that day.
Defendant was charged with various crimes in a twelve-
count indictment.
Our main concern is count 5, charging first
degree assault in that defendant "[w]ith intent to disfigure
another person seriously and permanently . . . causes such
injury" (see Penal Law § 120.10 [2]).
Defendant was also
indicted on two counts of second degree assault, alleging that he
caused physical injury "[i]n the course of and in furtherance of
the commission or attempted commission of a felony . . . or
immediate flight therefrom" (count 7; see Penal Law § 120.05 [6])
and that he intentionally caused "serious physical injury" (count
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- 3 10; see Penal Law § 120.05 [1]).
No. 163
All three assault counts, and a
lesser included charge, were submitted to the jury, but the jury
was instructed not to consider the lower-level assault charges if
it convicted defendant of first degree assault.
Defendant was convicted of attempted kidnapping,
criminal possession of stolen property and assault in the first
degree.
The Appellate Division affirmed, and a Judge of this
Court granted leave to appeal.
Defendant challenges only his
first degree assault conviction in this Court, and we now reverse
the Appellate Division's order insofar as it is appealed from.
II
Under Penal Law § 120.10 (2), a person is guilty of
assault in the first degree when:
"With intent to disfigure another person
seriously and permanently, or to destroy,
amputate or disable permanently a member or
organ of his body, he causes such injury to
such person or to a third person."
The decisive issue in this case is whether the evidence
was sufficient to support a finding, beyond reasonable doubt,
that the victim was disfigured "seriously."
We do not reach the
question of whether she was disfigured "permanently," or whether
defendant intended serious and permanent disfigurement.
Neither "disfigure" nor "disfigure seriously" is
defined in the Penal Law, and we have never addressed the meaning
of those terms as they are used in that statute.
But in Fleming
v Graham (10 NY3d 296 [2008]), we considered the meaning of
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No. 163
"severe facial disfigurement" as used in Workers' Compensation
Law § 11.
There, we approved the following definition of
"disfigurement":
"that which impairs or injures the beauty,
symmetry or appearance of a person or thing;
that which renders unsightly, misshapen or
imperfect or deforms in some manner"
(id. at 301, quoting Pilato v Nigel Enters., Inc., 48 AD3d 1133,
1135-1136 [4th Dept 2008]).
In explaining when a disfigurement
is "severe," we acknowledged that "no conceivable standard" could
perfectly identify all cases, but said:
"A disfigurement is severe if a reasonable
person viewing the plaintiff's face in its
altered state would regard the condition as
abhorrently distressing, highly
objectionable, shocking or extremely
unsightly"
(id.).
Fleming's definition of "disfigurement" seems no less
apt in the context of the Penal Law: a person is disfigured when
her natural beauty, symmetry or appearance is detrimentally
altered -- i.e., when she is rendered less attractive.
To say
when she is "seriously" disfigured is more difficult.
An injury
can be "serious" without being "severe," and thus a serious
disfigurement need not meet the stringent Fleming test -- it need
not be "abhorrently distressing, highly objectionable, shocking
or extremely unsightly" to a reasonable person.
But "to
disfigure . . . seriously" must be to inflict some harm
substantially greater than the minimum required for
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- 5 "disfigurement."
No. 163
Apart from disfigurement, the conduct that
warrants a first degree assault conviction under § 125.10 (2) is
"to destroy, amputate or disable permanently a member or organ of
[the] body."
It is fair to infer that the words "to disfigure .
. . seriously and permanently" were intended to describe an
injury of comparable importance.
We conclude that serious disfigurement may be defined
with a less strongly-worded version of Fleming's definition of
"severe" disfigurement.
A person is "seriously" disfigured when
a reasonable observer would find her altered appearance
distressing or objectionable.
The standard is an objective one,
but we do not imply that the only relevant factor is the nature
of the injury; the injury must be viewed in context, considering
its location on the body and any relevant aspects of the victim's
overall physical appearance.
To apply the standard to this case,
we examine what the evidence shows about the marks that defendant
created by biting the victim's inner forearm.
The record contains a picture of the bite marks, taken
on the day of the crime.
It shows two ovals with reddish
discoloration, one located at and above the midpoint between the
wrist and the elbow, the other closer to, but still several
inches above, the wrist.
According to hospital records, one bite
mark measured 3.5 x 3, the other 3 x 3, centimeters.
Police
officers who saw the victim's injuries on the day she suffered
them described them as "severe" and "deep."
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Hospital records
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No. 163
show that the victim's flesh was torn but that there was no
"exudation" (oozing of fluid from blood vessels).
not require any stitches.
The wounds did
The victim was told to follow up with
a plastic surgeon for "optimal" cosmetic results, but there is no
evidence that she did so.
There is no later photograph of the wounds, and the
record as to what they looked like after they had time to heal is
not precise.
The victim displayed her arm to the jury at trial,
but there is no contemporaneous description of what the jury saw.
Later in the trial, both counsel described the wounds briefly:
the prosecutor referred to "two large brown bite wounds," the
defense lawyer to "scars, little black and blues right now."
This limited record is not sufficient to support a
finding of serious disfigurement.
It shows no more than that the
victim had two scars of moderate size on her inner forearm.
This
is certainly a disfigurement, but no basis appears in the record
for finding it a serious one, as we have defined the term.
The
mere existence of such scars, considering their location, would
not make the victim's appearance distressing or objectionable to
a reasonable person observing her.
The case might be different
if there were something unusually disturbing about the scars, but
if there was the prosecution failed to make a record of it, in
the form of either a photograph or a detailed description.
We
decline the prosecution's invitation to infer, in effect, that
whatever the jury saw must have supported its verdict; a court
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No. 163
reviewing the sufficiency of the evidence cannot rely on facts of
which no record is made.
A contemporaneous photograph or
description is not necessary in every case where a victim's wound
is shown to a jury -- but it is necessary where, as here, there
is no other evidence in the record supporting an inference that
what the jury saw amounted to serious disfigurement.
We do not minimize the injury done to the victim by
defendant's vicious assault.
Perhaps no disfigurement is ever
trivial; certainly this victim's is not.
And no doubt more
important is the way in which her wounds were inflicted -- in a
horrifying experience that might well leave serious and permanent
emotional scars.
Scars of that kind, however, cannot support a
conviction for first degree assault as the statute is written,
and we must therefore reverse defendant's conviction of that
crime and order count 5 of the indictment dismissed.
Count 10, alleging second degree assault based on
"serious physical injury," must also be dismissed, because
without a "serious . . . disfigurement" there is no evidence in
this record of "serious physical injury" as the Penal Law defines
it (see Penal Law § 10.00 [10]).
Defendant may be retried,
however, on count 7, alleging that he committed second degree
assault by causing physical injury in the course of and in
furtherance of a felony or immediate flight therefrom.
Accordingly, the order of the Appellate Division, to
the extent appealed from, should be reversed and the case
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No. 163
remitted to Supreme Court for further proceedings consistent with
this opinion.
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People v Donald McKinnon
No. 163
PIGOTT, J.(dissenting) :
I respectfully dissent and would affirm the order of
the Appellate Division.
The majority states that it will not
infer "that whatever the jury saw must have supported its
verdict" because when conducting a review of the sufficiency of
the evidence, this Court "cannot rely on facts of which no record
is made" (maj op, at 7).
But that only underscores the critical
flaw in the majority's holding, namely, that it is the burden of
defendant--the objecting party--and not the People, to develop an
adequate record for appellate review (see People v Johnson, 205
AD2d 309, 309 [1st Dept 1994] appeal den 84 NY2d 827 [1994]
citing People v Olivo, 52 NY2d 309, 320 [1981]).
Here, defense counsel failed to make an adequate
record, as was his burden, that the People's evidence as to the
count of assault in the first degree was legally insufficient.
He could have easily demanded that a contemporaneous description
of the victim's arm be placed on the record, or asked that a
photograph depicting the victim's arm on the day of the trial be
admitted in evidence.
He did neither.
The record reflects that
the jury was shown color photographs of the victim's arm, which
were taken on the day of the attack, and that the victim
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No. 163
displayed her arm to the jury at trial 20 months later.
This, in
my view, was sufficient to support the jury's factual
determination that the scars fell within the parameters of the
assault in the first degree statute under which defendant was
convicted as well as the court's ruling that the evidence was
sufficient to sustain that charge (see People v Coon, 34 AD3d
869, 870-871 [3d Dept 2006] lv denied 10 NY3d 763 [2008]
[rejecting defendant's claim of insufficiency of proof of element
of serious physical injury, deferring to County Court's
assessment because it heard the testimony concerning the cuts and
also had the opportunity to observe the resultant scars]; People
v Irwin, 5 AD3d 1122, 1123 [4th Dept 2004] lv denied 3 NY3d 42
[2004] [victim's wounds required surgery and, although she did
not testify, photographs depicting her sutured wounds to the arm
and hand were admitted in evidence and jury could have reasonably
inferred that the wounds resulted in permanent scars]).
The
majority's conclusion, in my view, is nothing more than a factual
determination disguised as a sufficiency argument that this Court
lacks the authority to make.
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Order, insofar as appealed from, reversed and case remitted to
Supreme Court, Bronx County, for further proceedings in
accordance with the opinion herein. Opinion by Judge Smith.
Chief Judge Lippman and Judges Ciparick, Graffeo, Read and Jones
concur. Judge Pigott dissents and votes to affirm in an opinion.
Decided October 14, 2010
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