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People v. Everett

Supreme Court of New York, First Department

October 24, 2013

The People of the State of New York, Respondent,
v.
Herman Everett, Defendant-Appellant.

Law Offices of Leslie H. Ben-Zvi, New York (Leslie H. Ben-Zvi of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod of counsel), for respondent.

Sweeny, J.P., Renwick, Feinman, Clark, JJ.

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered December 16, 2011, convicting defendant, after a nonjury trial, of assault in the second degree, and sentencing him to a term of two years, unanimously affirmed.

The verdict was based on legally sufficient evidence (see People v Danielson, 9 N.Y.3d 342, 349 [2007]). The element of serious physical injury (Penal Law § 10.00[10]) was established, because the victim's permanent loss of four front teeth constituted a protracted impairment of her health or protracted loss or impairment of the function of a bodily organ (see People v Lanier, 44 A.D.3d 547 [1st Dept 2007], lv denied 9 N.Y.3d 1035 [2008]; People v Howard, 79 A.D.2d 1064 [3rd Dept 1981]). Since the teeth are lost, the victim can never eat with them, notwithstanding that she has been fitted with a prosthetic device; accordingly, her loss is not just protracted, but permanent. While the fact that damage to an organ has been successfully repaired may affect whether the injury qualifies as serious (see e.g. People v Rosado, 88 A.D.3d 454, 455 [2011], lv denied 18 N.Y.3d 928 [2012]), this does not apply when the organ is permanently lost, irrespective of whether it is replaced by a prosthesis.

Furthermore, the victim's loss of four front teeth also constituted a "serious and protracted disfigurement, " since "a reasonable observer would find her altered appearance distressing or objectionable" (People v McKinnon, 15 N.Y.3d 311, 315 [2010]; see also People v Snyder, 100 A.D.3d 1367, 1368 [4th Dept 2012], lv denied 21 N.Y.3d 1010 [2013][disfiguring dental injuries]). The fact that the victim received a removable prosthetic device did not ameliorate the seriousness of her injuries, since whenever she removes the device, the disfigurement will be readily apparent.

We have considered and rejected defendant's remaining arguments.


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