People v. Minchala

194 A.D.3d 754

143 N.Y.S.3d 575 (Mem)

The PEOPLE, etc., respondent,

v.Luis MINCHALA, appellant.

2019–07238

Ind. No. 2660/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—March 30, 2021

May 5, 2021

Jonathan Rosenberg, PLLC, Brooklyn, NY, for appellant.

Melinda Katz, District Attorney, Kew Gardens, N.Y. (Johnnette Traill, Joseph N. Ferdenzi, Roni C. Piplani, and Peter R. Isham of counsel), for respondent.

LEONARD B. AUSTIN, J.P., HECTOR D. LASALLE, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J.), rendered June 5, 2019, as amended June 28, 2019, convicting him of gang assault in the first degree, assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the defendant's convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree to attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree, and attempted assault in the second degree, respectively, and by vacating the sentences imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for sentencing on the convictions of attempted gang assault in the first degree, attempted assault in the first degree, attempted robbery in the first degree under Penal Law § 160.15(1), and attempted assault in the second degree.

On October 29, 2016, the complainant was stabbed multiple times, by multiple rival gang members who were out "mobbing," or searching for members of the complainant's gang to physically harm. According to the trial testimony of the physician who treated the complainant upon the complainant's arrival at a hospital emergency room, the complainant sustained multiple lacerations and wounds to his neck, head, chest, and abdomen, none of which affected his internal organs, and which were treated with sutures. The physician further testified that the complainant suffered a diminished grip strength in his left hand on the day of the incident. During his trial testimony, the complainant described numbness in his left arm that persisted "for a while" after the attack. One of the assailants also took the complainant's cane during the attack. Following a jury trial, the defendant was convicted of gang assault in the first degree, assault in the first degree, robbery in the first degree (two counts), robbery in the second degree, and assault in the second degree.

The defendant challenges his convictions of gang assault in the first degree, assault in the first degree, robbery in the first degree under Penal Law § 160.15(1), and assault in the second degree, asserting that the People failed to present legally sufficient evidence that the complainant suffered a "serious physical injury" ( Penal Law § 10.00[10] ). While the defendant's contention is unpreserved for appellate review, we reach it in the exercise of our interest of justice jurisdiction. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that the evidence was not legally sufficient to establish the defendant's guilt on these counts. Although the complainant was stabbed multiple times, there was no evidence of serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ (see People v. Stewart, 18 N.Y.3d 831, 939 N.Y.S.2d 273, 962 N.E.2d 764 ; People v. Mazariego, 117 A.D.3d 1082, 986 N.Y.S.2d 235 ; People v....