PEOPLE v. DE LA CRUZ (2022)

Judgment, Supreme Court, New York County (Daniel P. Conviser, J.), rendered December 17, 2019, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 10 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 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  The element of serious physical injury (Penal Law § 10.00[10]) was established by the victim's testimony, corroborated by medical evidence, that as the result of struggling with defendant over a knife in order to prevent him from cutting her throat, she sustained deep lacerations to her fingers in both hands, down to the bone, which severed tendons and a nerve and required surgery.  She also testified that, for a period of months after the crime, she was totally unable to care for herself and required the services of an in-home health care aide.  “Although the Penal Law does not define the term protracted, nothing in the statute limits protracted impairments to those that are permanent or measured in years” (People v. Herrera, 202 A.D.3d 517, 519, 162 N.Y.S.3d 61 [1st Dept. 2022] [internal quotation marks omitted]).  In any event, at the time of the trial years later, she still had only limited use of her hands (see People v. Willock, 298 A.D.2d 161, 748 N.Y.S.2d 17 [1st Dept. 2002], lv denied 99 N.Y.2d 566, 754 N.Y.S.2d 219, 784 N.E.2d 92 [2002];  People v. McDuffie, 293 A.D.2d 287, 740 N.Y.S.2d 48 [1st Dept. 2002] lv denied 98 N.Y.2d 699, 747 N.Y.S.2d 418, 776 N.E.2d 7 [2002]).

There was no reasonable view of the evidence, viewed in the light most favorable to defendant, to support a jury charge on the justifiable use of nondeadly force.  Defendant's primary defense at trial was that he had not intended to cut the victim, but was trying to disarm her.  This claim of an accidental injury required no justification charge at all (see People v. Poston, 95 A.D.3d 729, 730, 945 N.Y.S.2d 79 [1st Dept. 2012], lv denied 19 N.Y.3d 1104, 955 N.Y.S.2d 560, 979 N.E.2d 821 [2012]).

Further, defendant's testimony did not warrant a justification charge, as it included no version that only involved the use of ordinary physical force.  There was no reasonable view of the evidence that defendant used anything less than deadly force (see e.g. People v. Marishaw, 174 A.D.3d 401, 102 N.Y.S.3d 607 [1st Dept. 2019], lv denied 34 N.Y.3d 952, 110 N.Y.S.3d 656, 134 N.E.3d 655 [2019]).  Defendant caused deep lacerations to the victim's fingers in both hands, down to the bone, which severed tendons and a nerve and required surgery (see Willock, 298 A.D.2d 161, 748 N.Y.S.2d 17).

We perceive no basis for reducing the sentence.