Serious injury: PL 10.00(10) v. Ins Law 5102(d)

People v Garland, 2018 NY Slip Op 07927 (2018)

This is more esoteric but an interesting read.  Factually, Defendant shot the victim and a bullet remained in the victim’s leg.  The People returned a first-degree assault indictment (among other lesser crimes), requiring proof of “serious injury”.  The jury found that the injuries were “serious” and the Defendant was convicted on the top count of the indictment, first-degree assault.  The Appellate Division affirmed and the Court of Appeals affirmed, with two dissents.   The dissent is interesting:

“ne instructive comparison is to our decisions in “no-fault” automobile insurance cases. We regularly reject the sort of evidence of injury the victim here suffered as sufficient to support a jury verdict for the plaintiff; often we deem it insufficient to create a triable issue of fact as to whether an injury was serious (see e.g. Lopez v Senatore, 65 NY2d 1017 , Gaddy v Eyler, 79 NY2d 955 , Scheer v Koubek, 70 NY2d 678 ). The insurance law’s definition of “serious injury” is quite similar to the definition of “serious physical injury” in the Penal Law § 10.10(12). The plaintiffs in those cases, of course, have a much lower burden of proof than do the People here, who must prove the seriousness of the physical injury beyond a reasonable doubt. Nevertheless, disregarding the kind of analysis we regularly employ in those cases, the majority concludes that the victim’s “slight pain” and “little problems” are legally sufficient to establish “serious physical injury.”

The requirements set out in Stewart are similar to our approach in the no-fault context, where we have said that “subjective complaints alone are not sufficient” to establish serious injury, and that claims must be supported by “objective evidence” (Toure v Avis Rent a Car Sys., 98 NY2d 345, 351 ). Of course, the crucial difference between that regime and the elements required in assault statutes is that no-fault cases are civil, and criminal prosecutions require a much higher standard of evidentiary proof than civil suits. The majority’s opinion rests on less, based on assertions that are trivial or wholly speculative. We would not, in a no-fault or malpractice case, accept evidence about a plaintiff’s injury from a doctor who had never examined a patient and whose most recent review of medical records was four years distant.

Someone who shoots into a crowd and strikes an innocent teenager deserves to be harshly punished. But the Legislature, not the courts, have the responsibility to enact statutes criminalizing behavior and prescribing ranges of punishments. The Legislature has determined that the degree of actual injury to the victim is a crucial determinant of the amount of punishment to be meted out — even if the insubstantiality of the injury is the result of pure dumb luck. The Legislature has dealt with the use of a firearm to cause an injury separately, which is why second-degree assault can be established either by causing serious physical injury, or by causing physical injury by use of a deadly weapon. The Legislature has also attached a separate, substantial penalty (up to 15 years of imprisonment) to possession of a handgun, of which Mr. Garland was convicted. Those are legislative enactments to which we should adhere. Mr. Garland’s maximum sentence for second-degree assault is seven years; for first-degree assault, it is 25. By treating what is plainly not a serious physical injury as if it were, we are shredding the statutory scheme adopted by the Legislature and imposing one of our own making. I would vacate his first-degree assault convictions (leaving intact his conviction for Criminal Possession of a Weapon in the Second Degree) and remit the case for further proceedings.”

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