Supreme Court, Queens CountyJul 16, 2001
188 Misc. 2d 717 (N.Y. Misc. 2001)
188 Misc. 2d 717729 N.Y.S.2d 851

July 16, 2001.

Jonathan Marks, P. C., New York City, for defendant.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Paul Schraeter of counsel), for plaintiff.

The defendant, Ricky Tran, moves, inter alia pursuant to CPL § 330.30 (1) for an order reducing the defendant's conviction of Assault in the First Degree (PL § 120.10 (2)). The issue presented herein is whether the evidence adduced at trial is legally sufficient to support the jury's verdict in regard to that count.

The pertinent facts of the case are as follows: in the early morning hours of July 5, 1999, the defendant, Ricky Tran, fired a number of shots at Alex Chan, striking him in his right arm, slightly above the elbow, leaving a flesh wound. Following the incident Mr. Chan was treated at St. John's Hospital where the wound was cleaned, irrigated and dressed and the complainant was released with instructions to see his private physician in two days.

At trial the complainant displayed his arm, revealing a small brown discoloration or scar above his elbow, adjacent to a larger scar, which the complainant testified was the result of an unrelated injury.

The jury found the defendant guilty of Assault in the First Degree (PL § 120.10 (2)); Criminal Possession of a Weapon in the Second Degree (PL § 265.03); Criminal Possession of a Weapon in the Third Degree (PL § 265.02 (4)) and Assault in the Second Degree (PL § 120.05 (2)). PL § 120.10 (2) provides as follows:

A person is guilty of Assault in the First Degree when, with intent to disfigure another seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of the body of another, he or she causes such injury to that person or to a third person.

In order to satisfy the above statute, the People must prove, as essential elements, not only that the defendant seriously and permanently disfigured the complainant, or destroyed, amputated or disabled permanently a member or organ of the complainant's body but also that the defendant did so with the specific intent to do so.

In deciding the question of the defendant's intent, a jury may look to the nature of the act the defendant is accused of perpetrating ( People v. McDavis, 97 A.D.2d 302) as well as the injuries themselves. In this regard, evidence that the defendant fired a gun at the complainant standing alone might well support a jury finding of intent to cause death, or serious physical injury.

However, to sustain a conviction under PL § 120.10 (2) it is not sufficient to adduce evidence that the defendant had such a non-specific intent to cause death or an injury, serious or otherwise. The People are obligated to prove that the "disfigurement" or "destruction", "amputation" or "disabling" of an organ or body member was what the defendant specifically intended to do, by his act or acts.

Classic scenarios which would support a finding of an "intent to disfigure" are cases wherein the victim is maimed by acid in Mokone v. Kelly, 680 F.supp 679; a box cutter in People v. Truesdale , 186 A.D.2d 496; a razor in People v. Wade 187 A.D.2d 687 or where the nature of the injuries themselves support such an inference: i.e., serious permanent scarring and/or multiple facial cuts — People v. Murphy , 267 A.D.2d 255, on reconsideration, appeal denied 94 N.Y.2d 951; multiple body cuts People v. Allen, 165 A.D.2d 786, appeal denied 76 N.Y.2d 983; necessity of plastic surgeryPeople v. Sloane 284 A.D.2d 256, 2001 NYAD Lexus 6679, People v. Martinez, 257 A.D.2d 667; viciousness of the attack — In re Sean T., 224 A.D.2d 341; severity of scarring — People v. Moloi 135 A.D.2d 576, appeal denied 70 N.Y.2d 1009. Intent may also be inferred from other evidence such as statements of the defendant.

Here however, the court finds that the mere firing of shots and grazing of the complainant's arm leaving a small mark is insufficient evidence of the requisite intent from which the jury may infer that the defendant intended to "disfigure" or "destroy", "amputate" or "disable" as contemplated by PL § 120.10 (2).

In short, the court finds the record in this trial to be bereft of evidence that would support a finding of the required intent to sustain a violation of Assault in the First Degree under PL § 120.10 (2). Additionally, the court finds that the record fails to establish proof sufficient to support a finding of the additional element of a serious and permanent disfigurement, as contemplated by the statute and that while the injury sustained in this case may be permanent it clearly does not constitute a serious disfigurement. Therefore, the conviction for Assault in the First Degree under PL § 120.10 (2) must be vacated on both grounds.

Since the defendant was also convicted, inter alia, of Assault in the Second Degree in violation of PL § 120.05 (2), the court need not reduce the conviction of Assault in the First Degree to Assault in the Third Degree, which is an inclusory concurrent count of Assault in the Second Degree ( People v. Martinez, 262 A.D.2d 333; People v. Wardell , 46 A.D.2d 856).

Accordingly, the court vacates the defendant's conviction of Assault in the First Degree under Count II of the indictment and dismisses the Count.

Based upon the foregoing, the defendant's motion seeking to photograph the complainant's injury is denied as moot.