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People v. McKinnon

October 14, 2010

THE PEOPLE &C., RESPONDENT,
v.
DONALD MCKINNON, APPELLANT.



The opinion of the court was delivered by: Smith, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

We hold that the evidence was insufficient to support defendant's conviction for first degree assault, because it did not show that the victim of the assault was "seriously" disfigured.

I.

The victim was an inspector for the New York City Department of Health and Mental Hygiene. On the day in question, she went to inspect a summer camp at a Bronx storefront church. When she arrived, the camp was not yet open, but defendant, who lived in the building, let her in and began to chat with her. A few minutes later, defendant put an arm around the victim's neck and choked her. She lost consciousness briefly. When she revived, defendant again choked her with one arm, while holding a knife in his other hand; he tried to drag her into a hallway. Defendant put the knife down on a stool, and the victim grabbed it and began to stab him over her shoulder. Defendant responded by biting the victim twice on the inner forearm, leaving marks that we describe in detail below. The victim escaped into the street, and defendant ran away, taking the victim's cellphone with him. He was arrested later that day.

Defendant was charged with various crimes in a twelve-count indictment. Our main concern is count 5, charging first degree assault in that defendant "[w]ith intent to disfigure another person seriously and permanently . . . causes such injury" (see Penal Law § 120.10 [2]). Defendant was also indicted on two counts of second degree assault, alleging that he caused physical injury "[i]n the course of and in furtherance of the commission or attempted commission of a felony . . . or immediate flight therefrom" (count 7; see Penal Law § 120.05 [6]) and that he intentionally caused "serious physical injury" (count 10; see Penal Law § 120.05 [1]). All three assault counts, and a lesser included charge, were submitted to the jury, but the jury was instructed not to consider the lower-level assault charges if it convicted defendant of first degree assault.

Defendant was convicted of attempted kidnapping, criminal possession of stolen property and assault in the first degree. The Appellate Division affirmed, and a Judge of this Court granted leave to appeal. Defendant challenges only his first degree assault conviction in this Court, and we now reverse the Appellate Division's order insofar as it is appealed from.

II.

Under Penal Law § 120.10 (2), a person is guilty of assault in the first degree when:

"With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person."

The decisive issue in this case is whether the evidence was sufficient to support a finding, beyond reasonable doubt, that the victim was disfigured "seriously." We do not reach the question of whether she was disfigured "permanently," or whether defendant intended serious and permanent disfigurement.

Neither "disfigure" nor "disfigure seriously" is defined in the Penal Law, and we have never addressed the meaning of those terms as they are used in that statute. But in Fleming v Graham (10 NY3d 296 [2008]), we considered the meaning of "severe facial disfigurement" as used in Workers' Compensation Law § 11. There, we approved the following definition of "disfigurement":

"that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect or deforms in some manner" (id. at 301, quoting Pilato v Nigel Enters., Inc., 48 AD3d 1133, 1135-1136 [4th Dept 2008]). In explaining when a disfigurement is "severe," we acknowledged that "no conceivable standard" could perfectly identify all cases, but said:

"A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly" (id.).

Fleming's definition of "disfigurement" seems no less apt in the context of the Penal Law: a person is disfigured when her natural beauty, symmetry or appearance is detrimentally altered -- i.e., when she is rendered less attractive. To say when she is "seriously" disfigured is more difficult. An injury can be "serious" without being "severe," and thus a serious disfigurement need not meet the stringent Fleming test -- it need not be "abhorrently distressing, highly objectionable, shocking or extremely unsightly" to a reasonable person. But "to disfigure . . . seriously" must be to inflict some harm substantially greater than the minimum required for "disfigurement." Apart from disfigurement, the conduct that warrants a first degree assault conviction under ยง 125.10 (2) is "to destroy, ...


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