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#281 Third Department Caselaw Round-Up for January 12, 2012, Part 9 of 14

137 Post 01-12-12, Part 9 Third Department January.pngThis time around, instead of family court matters, we’ve got two criminal matters, both from St. Lawrence. In fact, they’re both from the same judge and both involve defendants from the same case.

29-17 Post St. Lawrence County.pngCase #118 #102839
People v. Dorfeuille, ___ A.D.3d ___, ___ N.Y.S.2d ___ St. Lawrence County – Richards Issues: Criminal Charges Cited statutes: CPL §200.70; 470.20 Modified

The defendant was convicted of four crimes: gang assault first and second, and assault first and second.

The defendant and his cohorts punched the victim in the face and chest, kicked him in the head, hit him while he was on the ground, and then stabbed him eight times for good measure. Nice guys.

For his role in the victim’s mauling, the defendant was sentenced to concurrent terms, with the largest sentence being twelve years in prison with five years of post-release supervision. The defendant appealed.

The defendant argued that it was error for the trial court to constructively amend the original indictment, which had the result of altering the facts stated in the indictment, but not of altering the theory of the case against the defendant. As such, the Third Department found this not to be error.

However, for the reasons stated in the next case, the Third Department dismissed the charges of gang assault second and assault second, and reduced the charges of gang assault first to gang assault second, and assault first to attempted assault first. The matter was then remitted back to the trial court to impose sentences on the reduced counts.

Case #119 #103569
People v. Tucker, ___ A.D.3d ___, ___ N.Y.S.2d ___ St. Lawrence County – Richards Issues: Criminal Charges; Evidence Cited statutes: CPL §300.40; 300.50; Penal Law §10.00; 110.00; 120.06; 120.07; 120.10 Modified

This defendant was one of the above defendant’s co-defendants in the same case. Here, we learn that the victim was a college student and that his attack resulted in a seven-count indictment against the three defendants, inclusive of attempted murder. This defendant received the same sentence as the defendant above, and he appealed as well.

Because gang assault second is a lesser included offense of gang assault first, just as assault second is of assault first, the trial court should have submitted said counts to the jury in the alternative. However, once the verdict was rendered on the greater counts together with the lesser counts, the trial court should have dismissed the lesser counts altogether, in the interests of justice.

The Third Department found that the elements for the crimes of gang assault first and assault first were in fact not present, as it was not proven that the victim suffered a “serious physical injury” as that term is defined in the Penal Law statutes. Why is this? Because while the victim was in fact stabbed eight times, he was “lucky” enough to have seven of the stab wounds turn out to be superficial. The eighth stab wound was actually quite serious, but not life-threatening. In fact, the victim’s treating surgeon testified that “had the most serious [stab] wound and the nearest [stab] wound to it been left untreated, they probably would not have been fatal”. Thus, the evidence never rose to the level of establishing that the victim’s injuries were life-threatening.

Unfortunately for the prosecution, the other possible categories of “serious physical injury” were also not established by the evidence, specifically photographs or medical testimony.

Thus, the Third Department found intent to inflict a “serious physical injury” but not the actual infliction of a “serious physical injury”, as that term of art is statutorily defined in the Penal Law, which thereby mandated the reduced counts.

As such, the Third Department remitted the matter back to the trial court for the imposition of a sentence on those reduced counts.

One last note: You have to read these decisions very carefully to catch all the coy subtleties involved. In this particular case, the Third Department makes known its displeasure with the trial attorneys for the defendants in the phrase “although no party raised this issue before the trial court”. Ouch. That’s basically code for “hey, knuckleheads, why the hell don’t you actually READ these statutes so that we don’t have to do your jobs for you!?”

Caselaw Round-Up Score Card:

Affirmed: 77 (64.71%)
Decision Withheld: 6 (5.04%)
Dismissed: 8 (6.72%)
Modified: 11 (9.24%)
Reversed: 17 (14.29%)

Total: 119