Opinion
July 20, 1978
Appeal from a judgment of the Albany County Court, rendered March 29, 1977, upon a verdict convicting defendant of the crimes of assault in the first degree and robbery in the second degree. That the defendant assaulted and robbed his drinking companion Garrette was established beyond any doubt. The only question preserved for our review is whether, with respect to the first degree assault charge (Penal Law, § 120.10, subd 1), the People proved that the defendant caused "serious physical injury" to Garrette within the meaning of the statute. "Serious physical injury" is an 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, subd 10.) The evidence produced at the trial was amply sufficient for the court to submit to the jury the factual issue as to the severity of the injuries sustained within the meaning of subdivision 1 of section 120.10 Penal of the Penal Law. It would seem, as a matter of law, that the fractures as described — without considering the throat cutting — constituted serious physical injuries. The charge to the jury was fair and impartial and amply covered the issue as to the assault charge. There were no exceptions thereto and the judgment should be affirmed. Judgment affirmed. Mahoney, P.J., Kane, Staley, Jr., Larkin and Herlihy, JJ., concur.