PEOPLE v. McDUFFIE (2002)

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered July 26, 1999, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him, as a second violent felony offender, to a term of 20 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   The element of serious physical injury was established by the victim's testimony, corroborated by medical testimony, that by the time of trial she still had difficulties in the use of her arm as a result of the assault, including difficulty lifting heavy objects.   This established a “protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00[10];  People v. Kenward, 266 A.D.2d 155, 699 N.Y.S.2d 35).   Furthermore, the jury observed the victim's permanent scars and could have reasonably concluded that they constituted protracted disfigurement (see, People v. Bailey, 275 A.D.2d 663, 713 N.Y.S.2d 535, lv. denied 95 N.Y.2d 960, 722 N.Y.S.2d 477, 745 N.E.2d 397).   Finally, contrary to defendant's assertion, the treating physician clearly testified that the victim's wounds also created a substantial risk of death.

We perceive no basis for a reduction of sentence.