What type of injury constitutes serious physical injury under New York’s Penal Law? This question of fact depends on the jury and, because of the legal sufficiency standard, Appellate Courts are hard-pressed to change decisions. In People v. Garland (Ct. App. 11/20/2018) (5-2), the defendant fired five shots at a crowd and hit a bystander in the leg. The medical records revealed that the bullet became stuck in the soft tissue near the victim’s femoral artery; the bullet was never removed from his leg because of the medical risks of doing so.
The majority of the judges noted that despite “record evidence favorable to the defense that, when viewed in isolation, might have presented an issue of fact for the jury” they had to uphold the appellate court’s decision. In their eyes, “viewing the evidence in the light most favorable to the People, as our legal sufficiency standard requires, we have no trouble concluding that the jury acted rationally in finding that the victim’s gunshot wound constituted a ‘serious physical injury’ (Penal Law § 10.00 ).” This was because of where the bullet was lodged, the possibility that it could move (if, for example, he participated in competitive sports against doctors’ advice), the fact that the victim could feel the bullet moving around, and the muscle damage sustained by the bullet entering the body. Ultimately, though, the majority held that this was a jury question.
Judge Wilson, joined by Judge Garcia, dissented and opined that the evidence was legally insufficient to support a finding that the victim suffered a “serious” physical injury. The dissent stated that the:
victim is not at substantial risk of dying; he has no serious disfigurement; he has no protracted health impairment and has not lost the function of any bodily organ. The record contains nothing that would meet the statutory definition of ‘serious physical injury.’
The dissent further argued that the majority’s decision was inconsistent with People v. Stewart, a case in which the court held that complaints of episodic discomfort associated with a physical injury but unconnected to an underlying medical condition do not rise to the level of a “serious physical injury”.
The dissent conceded that crime committed deserved harsh punishment, but it noted that the Legislature wrote the assault law such that greater degrees of injury to victims correspond to more severe grades of the offense. In fact, the dissent stated the Legislature determined that “the degree of actual injury to the victim is a crucial determinant of the amount of punishment to be meted out.” The dissent expressed the importance of exercising judicial restraint to preserve the Legislature’s intent noting that “[b]y treating what is plainly not a serious physical injury as if it were, we are shredding the statutory scheme adopted by the Legislature and imposing one of our own making.” (PT)