People v. Walos

229 A.D.2d 953, 645 N.Y.S.2d 695, 1996 N.Y. App. Div. LEXIS 8993

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of County Court convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [4] [recklessly causing serious physical injury]). The conviction arose out of an incident in which defendant slashed the victim’s face, thigh, and back with a box cutter.

On appeal, defendant contends that the court’s reasonable doubt instruction was deficient, that the evidence is insufficient to establish serious physical injury, and that the sentence is harsh and excessive.

The challenged portions of the court’s charge, instructing the jurors to decide whether a crime had been committed and whether defendant committed it, and that the trial was a "search for the truth,” did not dilute the standard of proof. The evidence at trial, particularly a photograph of the victim’s face, establishes that the victim sustained serious physical injury, viz., "serious and protracted disfigurement” (Penal Law § 10.00 [10]). Finally, we conclude that the sentence of 21/s to 7 years is not unduly harsh or severe in light of defendant’s history of assaultive behavior. (Appeal from Judgment of Niagara County Court, Hannigan, J.—Assault, 2nd Degree.) Present— Denman, P. J., Pine, Callahan, Balio and Davis, JJ.