People v. Payne

115 A.D.3d 439, 981 N.Y.S.2d 521

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 6, 2014
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Daniel P FitzGerald, J.), rendered February 8, 2010, as amended February 11, 2010, convicting defendant, after a jury trial, of robbery in the first degree and assault in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.

The verdict 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]). The element of serious physical injury was established by evidence that defendant inflicted a puncture wound that penetrated the victim’s cheek and sinus, resulting in permanent nerve damage. At the time of trial, long after the attack, the victim continued to experience significant numbness and abnormal sensations in her mouth and face that went well beyond mere discomfort. Accordingly, the injuries qualified as “protracted impairment of health” (Penal Law § 10.00 [10]; see People v Askerneese, 256 AD2d 34 [1st Dept 1998], affd 93 NY2d 884 [1999]).

Defendant’s right of confrontation was not violated by testimony by the People’s expert DNA analyst that referred to data gathered by nontestifying technicians (see People v Brown, 13 NY3d 332 [2009]; People v Vargas, 99 AD3d 481 [1st Dept 2012], lv denied 21 NY3d 1011 [2013]; see also Williams v Illinois, 567 US —, —, 132 S Ct 2221, 2242-2244 [2012]). In any event, any error in receiving this evidence was harmless (see People v Crimmins, 36 NY2d 230 [1975]).

Concur — Mazzarelli, J.R, Sweeny, Renwick, Freedman and Gische, JJ.