People v. GarlandPeople v. Garland
People v Garland (
| People v Garland |
| November 20, 2018 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, January 30, 2019 |
[*1]
| The People of the State of New York, Respondent, v Tamarkqua Garland, Appellant. |
Decided November 20, 2018
People v Garland,
Robert S. Dean, Center for Appellate Litigation, New York City (David Bernstein of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for respondent.
Memorandum.
The order of the Appellate Division should be affirmed. Defendant challenges his first-degree assault convictions, arguing that the evidence against him was not legally sufficient to establish the element of "serious physical injury" (Penal Law § 120.10 [1], [3]). Serious physical injury means "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" (Penal Law § 10.00 [10]). In reviewing a legal sufficiency claim, the Court must "view[ ] the facts in a light most favorable to the People" to determine "whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" (People v Danielson,
In this case, defendant fired five shots into a crowd and struck a 15-year-old bystander in the leg. According to medical records, the bullet was "lodged in the soft tissues of the [victim's] leg." An X ray showed two fragments of the bullet "on the side towards the front of the thigh," and the possibility of multiple other, smaller fragments. The [*2]victim testified at trial that, after the shooting, the injury hurt and he was bleeding a lot. He "had crutches for about two months" and, "after that, there was a lot of limping, crutches in the shower." The victim indicated that the ordeal was "[v]ery traumatizing."
The bullet fragments were never removed from the victim's leg. Medical records indicated that the injury was close to the victim's femoral artery—a "big blood vessel"—and, as a medical expert testified at trial, "where a bullet enters an extremity, we don't take the bullet out in the trauma situations" because "going after a bullet like this can cause further injury." In particular, where a bullet is "lodged near a blood vessel . . . , actually taking it out can cause injury to that blood vessel and near around it," resulting in "bleeding," "neurological deficit," "numbness," "tingling," and "weakness." The expert further noted that, had "the femoral artery . . . been struck with a bullet," possible medical complications could include "exsanguinating, bleeding, excessive bleeding" and "possibly loss of limb."
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As the dissent notes, there is certainly record evidence favorable to the defense that, when viewed in isolation, might have presented an issue of fact for the jury. That said, 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 [10]).
We have considered defendant's remaining contentions and conclude that they are without merit.
Wilson, J. (dissenting).
The Penal Law quite sensibly establishes various gradations of severity for assault, with the punishment increasing as the severity increases. Setting aside various types of assault involving circumstances not present here,[FN1] [*3]assault, like many other crimes, falls into the first, second and third degrees. As relevant here, assault in the first degree requires either: (i) "[w]ith intent to cause serious physical injury to another person, [the defendant] causes such injury to such{**
Whether Mr. Garland's conviction for first-degree assault can be sustained turns on whether Mr. Bethea, who has bullet fragments lodged in his leg, suffered a "serious physical injury." Here, the evidence is legally insufficient to show that Mr. Bethea suffered a "serious" physical injury. We do not have to guess at what the legislature meant in distinguishing "serious physical injury" from "physical injury." 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." "Physical injury," on the other hand, is defined as "impairment of physical condition or substantial pain" (Penal Law § 10.00 [9]).
The evidence of the victim's injury is as follows. At around 5:30 p.m., while walking past a group of people he did not know, the victim believed he had been shot by a BB gun because "the bullet hole was so little." He did not notice any blood and spent a while examining his leg before going to the hospital, arriving there around 6:20 p.m. An X ray of the victim's left thigh showed metal fragments but no fractures or neurovascular damage. He told the hospital staff that he had no numbness and was not suffering from any motor functions deficits. At 9:30 p.m., the victim described his pain level as being a 7 out of 10. By 11:50 p.m., he said it was 0 out of 10. The victim was not prescribed any pain medication upon discharge that night; he was prescribed antibiotics and given a tetanus shot. He was discharged with crutches that he used for two months. The metal fragments were never removed from his leg.
When asked how long after the shooting he felt pain in his leg, the victim responded: "Probably like every other day like trying to do activity involving my leg or something, like running or basketball, you feel slight pain when you're overdoing it, I guess." At trial, four years after the shooting, when asked{**
The People's medical expert testified it was "pretty protocol" not to remove the fragments because removal could cause further injury. The expert further testified that if the bullet had struck the femoral artery, it could have had severe health consequences, but told the court that his femoral artery was not injured, according to the hospital records. She stated that "possible" effects from a bullet protruding through nerves could cause "injuries to the kidneys from leakage of chemicals from the muscle, toxic to the kidneys, can cause pain and weakness, difficulty walking," though she did not testify that the fragments had protruded through nerves. She further testified that the X rays revealed no fractures, and no neurovascular or nerve damage. She acknowledged that she had never examined the victim and had not seen any medical records of his dated after 2010, when the shooting occurred. She concluded by saying that she was not able to testify that he had suffered any permanent disability.
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." Our only decision bearing directly on that definition is People v Stewart, in which we held that "serious physical injury" is not satisfied by "complaints of persisting discomfort unconnected to ascertainable health impairment" (
The lower courts have generally hewed to the legislature's language and ours in Stewart. For example, in People v Horton (
One instructive comparison is to our decisions in "no-fault" automobile insurance cases. We regularly reject the sort of evidence of injury the victim here suffered as sufficient to support a jury verdict for the plaintiff; often we deem it insufficient to create a triable issue of fact as to whether an injury was serious (see e.g. Lopez v Senatore,
The requirements set out in Stewart are similar to our approach in the no-fault context, where we have said that "subjective {**
Someone who shoots into a crowd and strikes an innocent teenager deserves to be harshly punished. But the legislature, not the courts, has the responsibility to enact statutes criminalizing behavior and prescribing ranges of punishments. The legislature has determined that the degree of actual injury to the victim is a crucial determinant of the amount of punishment to be meted out—even if the insubstantiality of the injury is the result of pure dumb luck. The legislature has dealt with the use of a firearm to cause an injury separately, which is why second-degree assault can be established either by causing serious physical injury, or by causing physical injury by use of a deadly weapon. The legislature has also attached a separate, substantial penalty (up to 15 years of imprisonment) to possession of a handgun, of which Mr. Garland was convicted. Those are legislative enactments to which we should adhere. Mr. Garland's maximum sentence for second-degree assault is seven years; for first-degree assault, it is 25. By treating what is plainly not a serious physical injury as if it were, we are shredding the statutory scheme adopted by the legislature and{**
Accordingly, I dissent.
Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur; Judge Wilson dissents in an opinion in which Judge Rivera concurs.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.
Footnote 1:E.g. Penal Law §§ 120.01 (reckless assault of a child by child day care provider), 120.04 (vehicular assault in the first degree), 120.09 (assault on a judge).
Footnote 2:See Insurance Law § 5102 (d) (" 'Serious injury' means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment").
Footnote 3:See Toure,