People v Montimaire
2012 NY Slip Op 00027 [91 AD3d 436]
January 5, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, February 29, 2012


The People of the State of New York, Respondent,
v
Joseph Montimaire, Appellant.

[*1] Steven Banks, The Legal Aid Society, New York (Lorca Morello of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Yuval Simchi-Levi of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered July 10, 2009, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of five years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). An emergency room doctor's testimony established the element of serious physical injury.

Defendant inflicted a stab wound that caused profuse bleeding. This caused the victim's blood pressure to fall to a dangerous level, so that he urgently required a massive blood transfusion and saline irrigation to stabilize his blood pressure and heart rate. The doctor testified that she acted extraordinarily quickly because she was concerned that the victim might lose so much blood as to endanger his life. The evidence warranted the conclusion that the injury created a substantial risk of death (see e.g. People v Jones, 38 AD3d 352 [2007], lv denied 9 NY3d 846 [2007]; People v Almonte, 7 AD3d 324 [2004], lv denied 3 NY3d 670 [2004]; People v Gordon, 257 AD2d 533 [1999], lv denied 93 NY2d 899 [1999]), even though the doctor never used that particular language. Concur—Andrias, J.P., Friedman, DeGrasse, Freedman and Manzanet-Daniels, JJ.