People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), is another case demonstrating how important it is for counsel to read the statutory provisions defining the crime for which a client is charged. As described below, appellate counsel, successfully made a counter-intuitive augment, not made by trial counsel in the motion for a trial order of dismissal, based on the statutory language.

Although a shot the chest leaving bullet fragments sounds like a serious physical injury, a determination of whether a defendant charged with assault in the first degree by, with intent to cause serious physical injury to another person, caused such injury to that person or to another person by means of a deadly weapon or a dangerous instrument  requires, in part,an examination of the statutory definition of "serious physical injury" and the proof.

Serious physical injury, as defined in the Penal Law, "means physical 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" (§ 10.00 [10]). In Madera, there was no evidence that the victim sustained serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. The issue on appeal was whether the proof was sufficient to establish that the victim's injuries created a substantial risk of death. As the Court summarized

The evidence at trial concerning the victim's injury consisted of the victim's testimony and medical records. That evidence established that the bullet entered and exited the victim's body around his right nipple; it was not near any vital organs; and it grazed the victim's right arm either as it entered or exited his body. Although a tiny fragment of the bullet remained in the victim's chest, the People presented no medical testimony to explain what, if any, risk that fragment posed to the victim. No sutures were needed and the victim's self-reported pain level was low. The victim was kept in the hospital overnight for pain management and observation, but he remained in the hospital for another day due to his expressed intent to retaliate against defendant.

Exercising its power to address the unpreserved issue of the sufficiency of proof, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]), the Court held that

[v]iewing that evidence in the light most favorable to the People, we conclude that no " rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' " (People v Contes, 60 NY2d 620, 621). The People presented no evidence establishing that the victim faced a substantial risk of death (see e.g. People v Nimmons, 95 AD3d 1360, 1360-1361, lv denied 19 NY3d 1028; People v Tucker, 91 AD3d 1030, 1031-1032, lv denied 19 NY3d 1002; People v Ham, 67 AD3d 1038, 1039-1040; People v Gray, 30 AD3d 771, 773, lv denied 7 NY3d 848).

Mr. Madera is fortunate that his appellate counsel, Mary Davison, raised this unpreserved issue and persuaded the Court. Yet one is left to wonder why was there not a specific motion for a trial order of dismissal on this ground.