Opinion
2014-03-6
The PEOPLE of the State of New York Respondent, v. Brian PAYNE, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), for respondent.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), rendered February 8, 2010, as amended February 11, 2010, convicting defendant, after a jury trial, of robbery in the first degree and assault in the first degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 20 years to life, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence ( see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). The element of serious physical injury was established by evidence that defendant inflicted a puncture wound that penetrated the victim's cheek and sinus, resulting in permanent nerve damage. At the time of trial, long after the attack, the victim continued to experience significant numbness and abnormal sensations in her mouth and face that went well beyond mere discomfort. Accordingly, the injuries qualified as “protracted impairment of health” (Penal Law § 10.00[10]; see People v. Askerneese, 256 A.D.2d 34, 683 N.Y.S.2d 200 [1st Dept.1998],affd.93 N.Y.2d 884, 688 N.Y.S.2d 479, 710 N.E.2d 1078 [1999] ).
Defendant's right of confrontation was not violated by testimony by the People's expert DNA analyst that referred to data gathered by nontestifying technicians ( see People v. Brown, 13 N.Y.3d 332, 890 N.Y.S.2d 415, 918 N.E.2d 927 [2009];People v. Vargas, 99 A.D.3d 481, 952 N.Y.S.2d 41 [1st Dept.2012], lv. denied21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1286 [2013];see also Williams v. Illinois, 567 U.S. ––––, 132 S.Ct. 2221, 2242–2244, 183 L.Ed.2d 89 [2012] ). In any event, any error in receiving this evidence was harmless ( see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ). MAZZARELLI, J.P., SWEENY, RENWICK, FREEDMAN, GISCHE, JJ., concur.