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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Julio ALMONTE, Defendant-Appellant.

Decided: May 11, 2004

TOM, J.P., ANDRIAS, SAXE, SULLIVAN, MARLOW, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Lyssa M. Sampson of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Holly Agajanian of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered October 4, 2001, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of 6 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence.   There is no basis for disturbing the jury's determinations concerning credibility (see People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112).

 The credible evidence disproved defendant's justification defense beyond a reasonable doubt.   Contrary to defendant's argument, the disinterested eyewitness saw the entire altercation and totally refuted defendant's claim of self-defense.   Furthermore, the jury could infer from defendant's conduct that he intended to cause serious physical injury (see People v. Steinberg, 79 N.Y.2d 673, 685, 584 N.Y.S.2d 770, 595 N.E.2d 845).

 The element of serious physical injury was established by evidence that defendant stabbed the victim in the chest, which caused him to be hospitalized for four days, during which time a large quantity of blood was drained from the his chest cavity, and which wound also caused permanent scars (see Penal Law § 10.00[10];  People v. Rodriguez, 2 A.D.3d 284, 285, 769 N.Y.S.2d 257).   Furthermore, the medical expert testified that, if left untreated, a wound such as the one the victim sustained would have created a substantial risk of death (see e.g. People v. Gordon, 257 A.D.2d 533, 685 N.Y.S.2d 28, lv. denied 93 N.Y.2d 899, 689 N.Y.S.2d 711, 711 N.E.2d 987).   The doctor's testimony about the risk of death was not conjectural (see People v. Fullard, 233 A.D.2d 757, 759, 650 N.Y.S.2d 433, lv. denied 89 N.Y.2d 1092, 660 N.Y.S.2d 386, 682 N.E.2d 987;  People v. Ross, 125 A.D.2d 422, 509 N.Y.S.2d 142, lv. denied 69 N.Y.2d 833, 513 N.Y.S.2d 1040, 506 N.E.2d 551).   Similarly, the court's charge that serious physical injury includes physical injury which, if left untreated, creates a substantial risk of death was a correct statement of the law and was warranted by the evidence.