People v. Fisher

Appellate Division of the Supreme Court of New York, Third Department · 2023 · Criminal Law

Criminal LawAssault in the Second DegreeWeight of the EvidencePreservationExpert TestimonySentencingPenal Law 120.05(1)serious physical injury

Facts

After the victim and defendant's paramour returned to the paramour's house and went to her bedroom, defendant entered the house and went upstairs despite being told to leave. The paramour and the victim testified that defendant pushed open the bedroom door, then placed his leg on the victim's chest and punched him three times in the face while the victim was on the bed. The victim suffered multiple facial fractures, underwent surgery involving plates and screws in his jaw, later had two additional surgeries, and testified to lasting effects including a scar, jaw numbness, inability to breathe through one nostril, blurred and double vision, headaches, and nightmares. Defendant testified that he struck only one blow and did so after the victim moved toward him and began to throw a punch.

Issue

Whether the conviction for assault in the second degree was against the weight of the evidence, including whether the People proved intent to cause serious physical injury and whether the jury could reject defendant's claim of self-defense. The court also considered whether certain appellate claims were preserved, whether the second otolaryngologist's testimony was improperly cumulative or bolstering, and whether the sentence was unduly harsh or severe.

Rule

A person commits assault in the second degree under Penal Law § 120.05(1) when, with intent to cause serious physical injury to another person, he or she causes such injury. On weight-of-the-evidence review, the court first asks whether a different finding would not have been unreasonable and, if so, weighs the relative probative force of the conflicting testimony and competing inferences while deferring to the jury's credibility determinations. Intent may be inferred from the defendant's actions, words, and surrounding circumstances, and a general motion for a directed verdict does not preserve specific legal insufficiency arguments.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Albany, Devin Cole was tried for second-degree assault after a fight outside an apartment building. At the close of the prosecution's proof, defense counsel moved for a trial order of dismissal, arguing only that the prosecution had failed to establish "a prima facie case as to all elements."

On appeal, Devin argues for the first time that the prosecution specifically failed to prove intent to cause serious physical injury. How should the appellate court treat that legal sufficiency claim?

Explanation. A general directed-verdict or dismissal motion asserting only that the prosecution failed to make out a prima facie case does not preserve specific legal sufficiency arguments for appeal. The defendant must direct the motion to the particular defect later raised. That an appellate court may still assess the elements during weight review does not make the legal sufficiency claim preserved. (Derived from People v. Fisher (n.d.).)