DECISION AND ORDER The defendant is charged with assault in the first degree and other related offenses listed in the indictment. The defendant moves for an order dismissing Counts 1-3 of the indictment on the ground of legal insufficiency. Upon review of the parties’ respective papers and the grand jury minutes, the defendant’s motion is denied. Preliminarily, the People contend that the defendant’s motion should be denied as untimely because it was filed on December 20, 2020, which was fifty-five (55) days after the defendant’s October 26, 2020 arraignment on the indictment.1 The court finds the People’s argument meritless. As defense counsel notes, on March 20, 2020, Governor Cuomo issued Executive Order 202.8. which tolled the time limit for the filing of any motion prescribed by the criminal procedure law through April 19, 2020. Subsequent executive orders extended the tolling period through the date on which the defendant’s motion was filed.2 In any event, as memorialized in the stenographic minutes of the calendar call on November 30, 2020, submitted as People’s Exhibit 1, defense counsel indicated that she was requesting to have the court review the grand jury minutes. Counsel further stated that she wanted to submit written arguments on purported issues concerning the assault in the first degree counts; the court directed defense counsel to submit the motion as soon as possible and adjourned the matter to January 20, 2021 for the court to issue its decision. The People did not object to the timeframe provided by the court during the calendar call and they have not asserted a meritorious basis upon which to render the motion untimely after the court has already deemed it otherwise. The indictment charges stem from an incident that allegedly occurred on August 29, 2020, inside the complainant and the defendant’s shared residence in Kings County, during which the defendant repeatedly struck the complainant with a broom, picked up a pot of boiling water and threw the water onto the complainant’s upper left arm. The defendant moves to dismiss Counts 1 and 2 of the indictment, which charge the defendant with assault in the first degree pursuant to Penal Law §§120.10 (1) and 120.10 (2), respectively. Additionally, the defendant seeks dismissal of Count 3 of the indictment, which accuses the defendant of committing attempted assault in the first degree (Penal Law §§110, 120.10 [2]). In evaluating defendant’s argument, the court must view the evidence in the light most favorable to the People (People v. Jensen, 86 NY2d 248, 251 [1995]). Legally sufficient evidence is defined as “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof.” (CPL §70.10[1].) In the context of a grand jury proceeding, “legally sufficient evidence” means proof of a prima facie case, not proof beyond a reasonable doubt (People v. Jennings, 69 NY2d 103 [1986]). A person commits assault in the first degree under Penal Law §120.10(1) when, “with intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” The defendant maintains that the People have not established that the complainant sustained a serious physical injury. In relevant part, serious physical injury “means physical injury…which causes…serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law §10.00 [10]). In the grand jury, the complainant attested that he drove to the 69 Precinct and filed a complaint report, at which time officers took a photograph of the complainant’s left arm to document his injuries. The People submitted that photograph in the grand jury as People’s exhibit 1A. Both the image and the complainant’s testimony inform that several large blisters and numerous small blisters appeared across his upper arm at that time. According to the complainant, after speaking with officers at the precinct, the complainant went to the Emergency Room at Beth Israel/Mount Sinai Hospital in Brooklyn. However, the complainant was transported by ambulance from Mount Sinai to the (Weill) Cornell Burn Center given the severity of his burns. The complainant testified that he suffered third degree burns and that doctors at the Cornell Burn Center opened the larger blisters and peeled off the burned skin before applying dressing to his wounds. People’s Exhibit 1B, a photograph taken at the Cornell Burn Center on the night of the incident, shows that doctors removed skin of various depths from most of the outer area of the complainant’s upper arm. On September 29, 2020, the complainant apprised the grand jury that he had three follow-up appointments at the Cornell Burn Center “thus far” and that the wound had yet to fully close, requiring him to keep the injury bandaged to avoid infection. The Penal Law does not define the terms “disfigure” or “seriously disfigure.” However, the Court of Appeals has ruled that “a person is ‘seriously’ disfigured when a reasonable observer would find her altered appearance distressing or objectionable” (People v. McKinnon, 15 NY3d 311, 315 [2010). The McKinnon Court further explained that, in making this assessment, the injury must be viewed in context, considering relevant factors such as the nature of the injury as well as "its location on the body and any relevant aspects of the victim's overall appearance" (id.). The defendant notes that the grand jury did not have the opportunity to observe the complainant's injury at the time of his testimony and the People failed to provide a more contemporaneous photo of the wound. The defendant maintains that in the absence of medical proof, "where there 'is no later photograph of the wounds, and the record as to what they looked like after they had time to heal is not precise'…the evidence is insufficient to establish that the complainant's injury would cause serious disfigurement" (Defendant's memorandum of law, citing McKinnon at 316).3 Notably, unlike the McKinnon victim's injuries, the complainant's wound had not healed at the time he appeared in the grand jury and required additional medical treatment. Although the complainant testified that there was some improvement and that some "pigmentation" had returned, given the extensive size and nature of the injury exhibited in the photo taken at the burn center and the complainant's testimony as a whole, the grand jury "could reasonably infer from the evidence that the…wounds resulted in permanent scars…[and] that the scars would make the victim’s appearance distressing or objectionable to a reasonable person observing” him (People v. Harwood, 183 AD3d 1281, 1282-1283 [4th Dept 2020] [internal citations and quotation marks omitted]). Because the grand jury could have rationally drawn the guilty inference due to, inter alia, the nature of complainant’s injury, the court must defer to its decision to indict defendant on the charge of assault in the first degree (People v. Woodson, 105 AD3d 782 [2d Dept 2013]). For the same reason, the court finds that the evidence presented was sufficient to establish Counts 2 and 3 of the indictment. The defendant’s primary contention is that there was insufficient proof that the complainant was disfigured seriously and permanently, which the court addressed above. The defendant’s assertion that the People failed to demonstrate that she acted with the intent to disfigure the complainant seriously and permanently is unavailing. Based on the complainant’s testimony that the defendant picked up a pot of boiling water and threw the water directly onto the complainant from a close distance, the grand jury could have inferred that the defendant acted with the requisite intent for purposes of Penal Law §120.10 (2). Moreover, the grand jury could have reasonably concluded that the progression of events — namely, that the defendant initially struck the complainant repeatedly with a broom before pouring boiling water on him, evinced a desire to inflict greater harm. Consequently, the defendant’s motion to dismiss Counts 2 and 3 of the indictment is denied (Woodson, supra). Further, upon the court’s review of the remaining counts of the indictment, the court finds that the evidence presented was legally sufficient to establish those offenses as well (People v. Pelchat, 62 NY2d 97 [1984]; People v. Calbud, Inc., 49 NY2d 389 [1980]; People v. Swamp, 84 NY2d 725 [1995]). Moreover, the court has confirmed that the Assistant District Attorney properly charged the grand jury with the applicable law (see People v. Calbud at 394-395). Accordingly, the defendant’s motion to dismiss Counts 1-3 of the indictment is hereby denied and the entire indictment is sustained. The foregoing constitutes the decision and order of the court. Dated: March 24, 2021
