People v. Wilkins

138 A.D.3d 581, 28 N.Y.S.3d 609

Opinion

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]).

Concur — Tom, J.P., Acosta, Richter, Manzanet-Daniels and Gesmer, JJ.