PEOPLE, res, v. HERMAN EVERETT, def-ap

10865. PEOPLE, res, v. HERMAN EVERETT, def-ap — Law Offices of Leslie H. Ben-Zvi, New York (Leslie H. Ben-Zvi of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for res — Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered December 16, 2011, convicting defendant, after a nonjury trial, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

The verdict was based on legally sufficient evidence (see People v. Danielson, 9 NY3d 342, 349 [2007]). The element of serious physical injury (Penal Law §10.00[10]) was established, because the victim’s permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ (see People v. Lanier, 44 AD3d 547 [1st Dept 2007], lv denied 9 NY3d 1035 [2008]; People v. Howard, 79 AD2d 1064 [3rd Dept 1981]). Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious (see e.g. People v. Rosado, 88 AD3d 454, 455 [2011], lv denied 18 NY3d 928 [2012]), this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.