DECISION AND ORDER A Grand Jury charged Defendant, Narada Matthews, with committing the crimes of Attempted Murder in the Second Degree, in violation of Penal Law §§110/125.25(1); Assault in the First Degree, in violation of Penal Law §120.10(1); three counts of Robbery in the First Degree, in violation of Penal Law §§160.15(1), 160.15(2), and 160.15(4), and two counts of Criminal Possession of a Weapon in the Second Degree, in violation of Penal Law §§265.03(1)(b) and 265.03(3). A subsequent Grand Jury separately accused Defendant of three counts of Bribing a Witness, in violation of Penal Law §215.00. The two indictments were later consolidated and a trial commenced before this Court on January 9, 2018. At the close of the People’s case on January 22, 2018, Defendant moved for a trial order of dismissal on the grounds that, among other things, the evidence of the victim’s injuries was not legally sufficient to prove “serious physical injury” as that term is defined in the Penal Law. The Court reserved decision on the Defendant’s motion. The Defendant renewed his request for a trial order of dismissal on the same grounds at the close of all the evidence on January 23, 2018. Again, this Court reserved decision and allowed the jury to deliberate on all the counts in the consolidated indictments.On January 26, 2018, the jury reached a unanimous verdict on all counts. The Defendant was acquitted of Attempted Murder in the Second Degree, but convicted on every other count.After the jury rendered its verdict, the defendant requested that this Court rule on his motions for a trial order of dismissal. Before ruling, this Court allowed the parties an opportunity to submit written memoranda on the legal sufficiency issue raised by the Defendant.The Evidence at TrialThe Complainant, Michael Butler and the Defendant, Narada Matthews, grew up in the same neighborhood and knew each other for approximately twenty years. Over that course of time, Mr. Butler loaned the Defendant money on numerous occasions.On December 24, 2015, at approximately 9:30 p.m., Mr. Butler drove from his home in New Jersey to visit his daughter in Manhattan. Mr. Butler’s daughter lived with his mother on 116th Street between Manhattan and Morningside Avenues. Butler parked his vehicle in front of his mother’s apartment building on 116th Street and subsequently received a call on his cell phone from the Defendant asking, to borrow money. Mr. Butler told Defendant that he had no money to lend. Defendant disputed Mr. Butler’s claim and suggested that Mr. Butler was “sitting on $80,000″ from the recent sale of a house (T. 18).1 The two argued until Mr. Butler ended the call by telling the Defendant that they would continue the discussion “another time” (T. 19). He then moved his car across the street from his mother’s building.At 11:30 p.m., Mr. Butler observed the Defendant seated in the passenger seat of a car being driven down the block by a friend of Mr. Butler’s named Nicole. Mr. Butler approached Defendant and engaged him in a brief conversation. The two agreed that they should not argue over money. Mr. Butler told Defendant that they would talk later. He then walked back to his car.Some time later that evening, an individual named “Spanish Anthony” told Mr. Butler about a conversation he had just overheard involving the Defendant. What Spanish Anthony said to Mr. Butler upset him and caused him to call the Defendant. Mr. Butler and the Defendant then engaged in a “more aggressive” conversation” (T. 33). Mr. Butler again told Defendant that they would discuss the matter “the next day” but Defendant responded that he was returning to the block to see Mr. Butler. Mr. Butler continued to “hang out” on the block with his friends, drinking and smoking marijuana.Thirty minutes later, Mr. Butler observed the Defendant standing next to Mr. Butler’s car. Mr. Butler asked Defendant “[are] we cool, [are] we okay?” (T. 35). The Defendant did not answer, instead he grabbed Mr. Butler, pressed a black revolver against his neck and stated, “Motherfucker, you know what it is…[g]ive me everything in your motherfucking pocket” (H. 35-36). Mr. Butler told Defendant that he could have everything and pleaded for Defendant not to kill him. Mr. Butler gave Defendant the contents of his pockets. Defendant ripped chains from Mr. Butler’s neck and removed his watch and bracelet. Still pressing the revolver against Mr. Butler’s neck, the Defendant forced Mr. Butler to walk down the block and away from his friends, telling bystanders to stand back or he would shoot Mr. Butler.There came a point when the Defendant moved the gun from Mr. Butler’s neck and aimed it towards his stomach. Mr. Butler seized upon this opportunity to strike the Defendant who then shot Mr. Butler in the stomach. A struggle ensued, which caused the Defendant to drop the gun. He then broke free from Mr. Butler and ran away. Mr. Butler picked himself up off the ground and together with some friends, chased the Defendant. The group caught Defendant on 116th Street and Morningside Avenue, where approximately eight individuals punched and kicked the Defendant for several minutes.When police arrived, Mr. Butler was sitting on the ground. He recalled a “gush of blood, [his] whole right side was bloodied” (T. 51). Mr. Butler was transported by ambulance to a hospital, where it was later determined that he had suffered a gun shot wound which had gone “through and through,” meaning the bullet entered the abdomen and exited near the hip.2The issue before this Court is whether the People have met their burden of proof as to the element of “serious physical injury” under both, Assault in the First Degree pursuant to Penal Law §120.10(1) and Robbery in the First Degree pursuant to Penal Law §160.15(1).While it may seem almost frivolous to even question whether a person shot in the stomach at point blank range has suffered a serious physical injury, this Court nonetheless is compelled to find that the People have not met their burden of proof as to that element as it is defined in the Penal Law and as it has been applied by governing case law.Legal DiscussionCriminal Procedure Law §290.10(1)(a) authorizes a trial court to grant a trial order of dismissal as to any or all counts of an indictment when the “trial evidence is not legally sufficient to establish the offense(s) charged.” CPL §290.10(1). Evidence is legally sufficient when — regardless of quality or weight — the competent evidence, “which if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.” People v. Aleynikov, 148 A.D.3d 77 (1st Dept. 2017), quoting People v. Carrion, 165 A.D.2d 671, 672 (1st Dept. 1990). The court deciding the motion must view all of the evidence in the light most favorable to the prosecution. Aleynikov, 148 A.D.3d at 83, citing People v. Simon, 157 A.D.2d 508, 512 (1st Dept. 1990).To sustain a conviction for Assault in the First Degree pursuant to PL §120.10(1), the People must prove at trial that the defendant, “[w]ith intent to cause serious physical injury to another person, [caused] such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Likewise, the charge of Robbery in the First Degree pursuant to Penal Law §160.15(1), requires proof that the Defendant “forcibly [stole] property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime…[c]auses serious physical injury to any person who is not a participant in the crime.”Penal Law §10.00(10) defines “serious physical injury’ as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (emphasis added).The People concede that Mr. Butler’s injuries did not cause protracted impairment of health or protracted loss or impairment of the function of any bodily organ. Rather, the People assert that Mr. Butler’s injuries created a substantial risk of death or, in the alternative, caused serious and protracted disfigurement.When called upon to decide whether the People have satisfied the serious physical injury element of a charge, the court must “[c]onsider the victim’s actual injuries, rather than mere possibilities or what could have happened.” People v. Tucker, 91 A.D.3d 1030 (3rd Dept. 2012). In other words, the evidence must demonstrate that the injury inflicted in a specific case “did, in fact, create a substantial risk of death to this victim.” People v. Nimmons, 95 A.D.3d 1360 (2d Dept. 2012).At trial, Mr. Butler testified that:From [the day I was shot,] I have a strain on my right side and lower thigh from me reaching from the bullet going in and when it came out. When I reach on my right side the doctors explained that I will always have the feeling from stretching because of the bullet hole on my right side.(T. 83). Mr. Butler further testified that his digestive system was “[g]etting back to normal,” explaining that, “[t]he bowel movement. If the bullet would have went one inch to the left or right, my bowel movements are not the same” (T. 83) (emphasis added). Additionally, Mr. Butler indicated that he had a “dark discoloration” where the bullet entered and exited his body (T. 85).Essentially, Mr. Butler testified that he would have a strain on his right side and that if the bullet had entered one inch further in either direction, then his bowel movements would not be normal. He testified as to what he was told could have happened, not what actually resulted.The People offered the credible testimony of Dr. Depaz, the Emergency Room General Surgeon who treated Mr. Butler. Dr. Depaz testified as follows:Q. So, when Mr. Butler first came into the hospital, what was the chief medical concern?A. Injuries to his internal organs, his heart, his lungs.Q. What, specifically, had occurred; did he have gunshot wounds?A. Yes, he had two gunshot wounds.Q. Okay, he had two gunshot wounds. Where were the gunshot wounds located?A. He had a.5 centimeter bruise, approximately the size of a dime, in the lower anterior right chest between the 8th and 9th rib, just anterior to the anterior and lateral chest. That’s one wound.The second wound was over the right hip, just to the side of the right hip, and there was swelling between the two wounds with some discoloring and bruising.Q. So, you said a lot of medical terminology. If you could please stand and demonstrate where you were pointing on your body for the ladies and gentlemen of the jury.A. Yes.The anterior lower right chest, between the 8th and the 9th rib, just anterior to the anterior line.And the second one just tracked on the side of the right hip with swelling between the two points with tenderness over the lower abdomen of the tract under the skin and tenderness over the right lower abdomen.Q. Okay, you may have a seat.Let the record reflect that the doctor was pointing towards his right abdomen stomach area and as well as his right upper thigh and hip area.THE COURT: Yes.[THE PROSECUTOR]:Q. Dr. Depaz, what is a through-and-through gunshot wound?A. That’s when we have both an entry wound and exit wound, two wounds, with a track between the two wounds.Q. When you say, a track between the two wounds, what do you mean exactly?A. The penetrating gunshot would have gone through the underlying soft tissue and would have produced injury within that tissue leaving a passageway between the two points; point of entry, point of exit.Q. And, Mr. Butler’s two gunshot wounds, were they consistent with a through-and-through injury?A. Yes.Q. And were Mr. Butler’s gunshot wounds consistent with a bullet entering his chest area and then exiting his hip and thigh area?A. Yes.Q. What else did you observe about the area surrounding these two gunshot wounds?A. Swelling and bruised with skin color changes.Q. And what kind of skin color changes?A. Redness.***Q. And did Mr. Butler’s wounds require medical treatment?A. Yes.After completing the evaluation which included x-rays, CAT scan, multiple specialized x-rays, blood tests and series of examinations, we then proceeded to wash out the wounds and we can apply the dressing to those wounds.Q. How long did Mr. Butler stay at the hospital?A. Over 24 hours.He was discharged on the 26th of December 2015, at approximately 4, after 4 p.m.(T. 364-367) (emphasis added).In substance, Dr. DePaz testified that Mr. Butler’s gunshot wounds caused swelling, bruising and redness. He further testified that after extensive examination, the wounds were washed out and dressings were applied. Mr. Butler remained in the hospital for “over 24 hours.” At no time did Dr. DePaz testify that Mr. Butler had suffered internal bleeding, injury to any internal organ or that surgery was required. The bullet went through Mr. Butler’s abdomen without touching or damaging any internal organs. The doctor further testified as follows:Q. According to the medical records did Mr. Butler pursue any follow-up treatment after being discharged?A. Yes.Q. What dates did he receive follow-up treatment?A. He attended the surgical clinic on the 8th of January 2016.Q. And did he have any physical or medical complaints on January 8th?A. Yes.He was complaining of pain over the right lower abdomen related to some injury with some hardening of the lower end of the tract, very adjacent next to the wound over the right hip.Q. So, he was — is it fair to say he was complaining of pain near the gunshot wound by his hip?A. Yes.Q. And were there any complications observed by the medical staff at that time?A. Yes.It was indicated that he had drainage of blood, yellowish fluid from the gunshot wound over the right hip consistent with infection.Q. It was consistent with infection?A. Yes.Q. So, what are the steps taken due to the potential for infection?A. He had a dressing. The wound was cleaned and dressed in the clinic. He was also prescribed a seven-day course of oral antibiotics and a request was made for a CAT scan to rule out any foreign body within or related to the wound.Q. And have you reviewed that CAT scan?A. Yes.He had a CAT scan which showed besides — besides the swelling, the hematoma within the tract. It also showed a resolution of some air that we had seen previously along the tract in the previous CAT scan.It also showed three small foreign bodies consistent with wound infection.Q. So, just to be clear, based on your view of the CAT scan there was indication of infection?A. Yes.(T. 367-369) (emphasis added).Again, Dr. DePaz testified in substance that Mr. Butler returned for follow-up treatment approximately two weeks later complaining of pain near one of the wounds. It was determined that the wound was infected, the dressing was changed and he was prescribed a seven-day course of antibiotics. No further evidence was presented to suggest that there were any additional complications or that Mr. Butler received any additional treatment.Dr. DePaz was then asked a serious of hypothetical questions which he responded to as follows:Q. Dr. Depaz, in your expert opinion with respect to Michael Butler could he have died due to the gunshot wound to his chest and abdomen and his hip and thigh area?A. Yes, yes.Q. How?A. Bleeding.Injury to the main vessel the heart, entrapment of air around the lung with lung collapse and immediate cardiac arrest. He could have died from injury due to bleeding from the liver, or bleeding from any of the organs, the kidney, bleeding from any of the vessels with the abdomen, the vena cava, abdomen, the aorta, bleeding to the vessels.He could have also died over a longer period of time from contamination. He could have died from multiple organ failure infection and multiple organ failure.Q. What do you mean by infected by contamination?A. When you have penetrating injury to the intestine, the intestinal contents, the intestinal contents will contaminate the perineal cavity and lead to bacterial infection in the cavity. That leads usually to systemic organ failure and subsequent death.Q. With respect to Mr. Butler’s injury of gunshot wounds, could that have resulted in death?A. He could have had significant injury and during his observation we were observing him because we could miss that injury.[THE PROSECUTOR]: Thank you, Dr. Depaz.No further questions at this time.[DEFENSE COUNSEL]: No questions.(T. 369-370) (emphasis added).Viewing the evidence in the light most favorable to the prosecution, People v. Askerneese, 93 N.Y.2d 884, 885 (1999), citing People v. Contes, 60 N.Y.2d 620, 621 (1983), this Court must conclude that Mr. Butler’s injuries did not create a substantial risk of death.Although the evidence established that Defendant shot Mr. Butler at point blank range in the lower chest or right abdomen, approximately four inches above his waist, the bullet exited Mr. Butler’s body just above his right hip/thigh area without impinging any major organs. When Mr. Butler was brought to the emergency room, medical personnel were understandably concerned about injuries to his internal organs. However, after conducting specialized x-rays, a CAT scan, blood tests, and other examinations, Mr. Butler’s wounds were merely cleaned and bandaged and the hospital monitored him for a period of time to ensure that he had no internal injuries (T. 369). He was subsequently released after being in the hospital for a little over twenty-four hours with no evidence of further injuries.Twelve days later, Mr. Butler developed an infection in or around the wound and returned to the hospital for treatment, at which time the wound was cleaned and Mr. Butler was given a seven-day course of antibiotics. Although Dr. Depaz testified that, if left untreated, Mr. Butler could have eventually died from his injuries, i.e., from bleeding or a subsequent infection of the internal cavity, Dr. Depaz never stated, nor could a jury reasonably infer, that Mr. Butler’s injuries created a substantial risk of death.While it is certainly counterintuitive, this Court is compelled to find under the unique facts and circumstances presented in this case that the medical evidence, along with the victim’s testimony were legally insufficient to establish that the injury to Mr. Butler created a substantial risk of death. See Tucker, 91 A.D.3d at 1031-1032 (no evidence that the victim’s injuries caused a substantial risk of death where “[t]he most serious [of eight stab] wound[s] was approximately four inches long and 2 ½ inches deep and transected the victim’s rectus abdominis muscle, but the bleeding was stopped with a few sutures…the victim was alert, never lost consciousness, was not in shock, no internal organs were punctured, his blood loss was not massive” and “[t]he treating emergency room physician testified that the wounds collectively ‘could [ ] have caused substantial risk of death,’” and “[t]he surgeon who sutured the wounds testified that it was ‘possible’ that the victim’s collective wounds would have been fatal if the injuries had all gone untreated. But he also testified that had the most serious wound and the nearest wound to it been left untreated, they probably would not have been fatal.”) (emphasis added); Nimmons, 95 A.D.3d at 1361 (no evidence presented that a gunshot wound created a substantial risk of death, where the Emergency Medical Technician described the “potential consequences” of the gunshot wound and never testified that the victim’s injury in that case, in fact, created a substantial risk of death) (emphasis added); People v. Sleasman, 24 A.D.3d 1041, 1042 (3rd Dept. 2005) (the victim’s stab wounds to her neck, although characterized as having the “ potential to be life threatening,” did “no damage to her trachea, esophagus or the major vessels in her neck,” thus, the People failed to demonstrate that the risk of death was substantial).Additionally, the evidence did not establish that the injuries to Mr. Butler caused serious and protracted disfigurement, i.e. that a reasonable observer would find Mr. Butler’s scars “distressing or objectionable.” People v. McKinnon, 15 N.Y.3d 311, 314-315 (2010). Here, Mr. Butler merely testified that he had dark discoloration where the bullet entered and exited his body. The scars or discoloration were not displayed for the jury or described for the record, nor were photographs of Mr. Butler’s scars or discoloration (as they appeared at the time of trial) offered into evidence.3This trial record is insufficient to support a finding of serious and protracted disfigurement. While there may have been scars left on Mr. Butler, this Court has no basis to find that they are serious, especially considering the location of the scars. See McKinnon, 15 N.Y.3d at 316 (“[t]he mere existence of such scars, considering their location, would not make the victim’s appearance distressing or objectionable to a reasonable person observing her. The case might be different if there were something unusually disturbing about the scars, but if there was the prosecution failed to make a record of it, in the form of either a photograph or a detailed description”); see also People v. Stewart, 18 N.Y.3d 831 (2011) (the “superficial” wounds suffered by the victim as a result of being struck with a sharp instrument required only gauze dressing, and a six-to-seven-centimeter wound on the inner forearm required sutures and their removals were not shown to be objectively “distressing or objectionable”); People v. Garay, 158 A.D.3d 508 (1st Dept. 2018) (“[a]lthough there was testimony that the victim still had some physical effects of the assault at the time of trial, the evidence on this was limited and, in any event, the record before the jury did not show that the injury was such that a reasonable observer would find the victim’s appearance distressing or objectionable”).This Court in no way seeks to minimize Mr. Butler’s injuries nor the manner in which they were inflicted. However, the evidence of the observable scarring presented by the prosecution cannot support a conviction for first-degree assault, as a reasonable person would not find Mr. Butler’s minimally altered appearance distressing or objectionable. Thus, the People have also failed to demonstrate that Mr. Butler suffered serious and protracted disfigurement as a result of his gunshot wounds.Accordingly, the People have failed to establish the element of serious physical injury as defined in Penal Law §10.00(10) and required under both, Assault in the First Degree and Robbery in the First Degree. Therefore, Defendant’s conviction for Assault in the First Degree, in violation of Penal Law §120.10(1), must be reduced to Attempted Assault in the First Degree in violation of Penal Law §§110/120.10(1). Defendant’s conduct in pointing a gun towards Mr. Butler’s torso and firing at point blank range established beyond a reasonable doubt that the Defendant intended to cause serious physical injury and that he “came ‘dangerously near’ to committing the completed crime” of Assault in the First Degree. People v. Ekwegbalu, 131 A.D.3d 982 (2d Dept. 2015), quoting People v. Kassebaum, 95 N.Y.2d 611, 618 (2001); see also People v. Gray, 30 A.D.3d 771 (3rd Dept. 2006). The conviction for Robbery in the First Degree under subdivision (1) must be dismissed as the People have failed to prove the element of serious physical injury.Accordingly, this Court reduces the conviction of Assault in the First Degree to Attempted Assault in the First Degree and dismisses Robbery in the First Degree under subdivision (1). For all the reasons stated above, Defendant’s motion for a trial order of dismissal is hereby granted to the extent discussed in this decision.The above constitutes the decision and order of this Court.Dated: April 25, 2018New York, New York
