Opinion
2021-05785 Ind 1753/15
10-21-2021
The People of the State of New York, Respondent, v. Lenin Gonzalez, Defendant-Appellant. Appeal No. 14430 No. 2017-960
Janet E. Sabel, The Legal Aid Society, New York (Susan Epstein of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Susan Epstein of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Julia Gorski of counsel), for respondent.
Before: Acosta, P.J., Manzanet-Daniels, Kern, Oing, Kennedy, JJ.
Judgment, Supreme Court, New York County (James M, Burke, J. at hearing; Daniel P. Conviser, J. at jury trial and sentencing), rendered July 12, 2016, as amended August 26, 2016, convicting defendant of assault in the first degree and criminal possession of a weapon in the third degree, and sentencing him to an aggregate term of 12 years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v Danielson, 9 N.Y.3d 342, 348 [2007]). The element of serious physical injury was satisfied by evidence that clearly supported a finding of serious disfigurement (see People v McKinnon, 15 N.Y.3d 311, 315-316 [2010]). The wound inflicted by defendant also created a substantial risk of death due to its proximity to the victim's carotid artery and jugular vein, even though neither was in fact severed (see People v McKinzie, 161 A.D.3d 703, 703-704 [1st Dept 2018], lv denied 32 N.Y.3d 1113 [2018]). Finally, the evidence also supported a finding of serious physical injury based on protracted impairment of health, because the pain on the victim's neck persisted at the time of the trial, a year after the attack (see People v Corbin, 90 A.D.3d 478, 479 [1st Dept 2011], lv denied 19 N.Y.3d 972 [2012]).
At a Rodriguez hearing (see People v Rodriguez, 79 N.Y.2d 445 [1992]), a detective's testimony established that the victim was sufficiently familiar with defendant so that his identification of defendant was confirmatory. The detective gave detailed testimony about the victim's relationship with defendant based on his conversations with the victim and his aunt. The victim and his aunt each told the detective defendant's full name, and they both explained that the victim had known defendant for years, that they grew up together in the neighborhood, and that they knew each other's families. In any event, any error was harmless because identity was not a disputed issue at trial.
We perceive no basis for reducing the sentence.