People v Ham

Victim, playing basketball on defendant's team, was not, in defendant’s opinion, playing hard enough.  The two exchanged words, but no punches thanks to friendly intervention. Defendant left but soon returned to open fire on the victim until he was out of bullets, victim ducked behind a tree and returned fire.

As victim tried to escape, a co-defendant retrieved a rifle, knelt down, and shot victim in the leg, through and through.

Defendant appealed his assault in the first degree conviction and argued that victim was not seriously injured as defined by Penal Law section 10.00 [10] to be "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."

Victim was in pain, required physical therapy, needed crutches or a cane, and was unable to return to the basketball court for a while.  While the victim testified that the now walks with a limp, his aunt testified that he walked out of the hospital and had a life long limp because he was born with a "club foot." 

The Appellate Division reduced the assault conviction to attempted assault in the first degree.

 People v Ham (2009 NY Slip Op 07879)