

People v Wilkins (2016 NY Slip Op 03089)





People v Wilkins


2016 NY Slip Op 03089


Decided on April 21, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 21, 2016

Tom, J.P., Acosta, Richter, Manzanet-Daniels, Gesmer, JJ.


901 2279/10

[*1]The People of the State of New York Respondent,
vJahmari Wilkins, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Ben A. Schatz of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Matthew B. White of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Margaret L. Clancy, J.), rendered September 24, 2013, convicting defendant, after a jury trial, of gang assault in the first degree, and sentencing him to a term of five years, unanimously affirmed.
The conviction was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The element of serious physical injury (Penal Law § 10.00[10]) was established by the victim's testimony, coupled with a physician's testimony, demonstrating that the victim's broken jaw caused a protracted impairment of his health, or of the function of a bodily organ. The victim's fractured jaw required surgical intervention, resulting in his jaw being wired shut. For several months thereafter, the injury caused significant pain, restricted the victim to a liquid diet and prevented him from working. We note that nothing in the statute limits "protracted" impairments to those that are permanent or measured in years; in any event, at the time of trial, years after the crime, the injury still prevented the victim's jaw from closing properly and affected his speech (see e.g. People v Messam, 101 AD3d 407, 407-408 [1st Dept 2012], lv denied 20 NY3d 1102 [2013]; People v Martinez, 224 AD2d 254, 255 [1st Dept 1996], lv denied 88 NY2d 989 [1996]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 21, 2016
CLERK


