People v. Strange: Protracted Nasal Septum/Breathing Impairment Qualifies as “Serious Physical Injury” and Narrows “Temporary and Lawful” Firearm Possession Claims

1. Introduction

In People v Strange (Appellate Division, Third Department, Mar. 19, 2026), Travis R. Strange appealed from a Chemung County Court judgment after a bench trial convicting him of (i) two counts of criminal possession of a weapon in the fourth degree (as lesser included offenses), (ii) criminal possession of a weapon in the third degree, (iii) assault in the second degree, and (iv) menacing in the second degree.

The prosecution alleged that during a November 2021 domestic incident defendant assaulted the victim and pointed a loaded pistol at her face. The trial court acquitted defendant of two counts of criminal possession of a weapon in the second degree but convicted on the lesser weapon counts and the assault/menacing counts.

On appeal, defendant argued (1) legal insufficiency and (2) weight of the evidence. He also challenged the sentence as harsh and excessive. The Third Department affirmed.

2. Summary of the Opinion

  • Forfeiture: Defendant forfeited legal-sufficiency review of the two fourth-degree weapon convictions because he affirmatively requested those lesser-included charges.
  • Legal sufficiency (preserved portions): The evidence supported findings that (a) the victim suffered “serious physical injury” due to a protracted nasal impairment requiring surgery, and (b) defendant’s firearm possession was not “temporary and lawful,” supporting the weapon convictions, and that the pistol-display evidence supported menacing.
  • Weight of the evidence: Deferring to the trial court’s credibility determinations, the Third Department held the verdict was not against the weight of the evidence.
  • Sentence: The sentence was not harsh or excessive given defendant’s criminal history and the violence involved.

3. Analysis

A. Precedents Cited

1) Forfeiture and scope of review when lesser-included offenses are requested

  • People v Branton: Cited for the rule that a defendant who affirmatively requests a lesser-included offense charge forfeits appellate legal-sufficiency challenges to that conviction. Strange applied this to the fourth-degree weapon counts.
  • People v Gill: Cited alongside People v Branton to reinforce forfeiture principles where the defense requests the lesser-included submission.
  • People v Mazzeo: Used to explain that even when legal-sufficiency challenges are forfeited as to particular counts, a weight-of-the-evidence review “necessarily” entails considering whether the elements were proven beyond a reasonable doubt. Strange relied on this to review the proof in a holistic way.

2) Legal sufficiency framework and “serious physical injury” via protracted impairment

  • People v Gilmore: Provided the governing legal-sufficiency standard (valid line of reasoning/permissible inferences) and was also used substantively to support the conclusion that the evidence showed both serious physical injury and non-temporary, non-lawful firearm possession.
  • People v Stetin: Supported the proposition that a protracted impairment to the nose can satisfy “serious physical injury.”
  • People v Flanigan: Reinforced that persistent symptoms long after the incident (here, breathing difficulties more than a year later) are probative of “protracted impairment,” thus meeting the serious-injury threshold.

3) “Temporary and lawful” firearm possession limitation

  • People v Williams: Central authority on the “temporary and lawful” possession concept; Strange invoked it to conclude the defense theory failed where the gun was kept at the residence and used in anticipation of confrontation and “in a dangerous manner.”
  • People v Calafell and People v Mack: Cited as additional applications of the doctrine, supporting the conclusion that the facts here did not fit within a narrow, excusing category of transient, lawful handling.
  • People v Ramirez: Used as a contrast (“compare”) in the weight-of-the-evidence analysis to frame why the trial court could rationally find unlawful/dangerous possession on this record.

4) Menacing proof and perception of a firearm

  • People v Gaylord: Supported the legal sufficiency of the menacing conviction based on testimony that defendant displayed the pistol at the victim’s face.
  • People v Crowley and People v Imes: Cited to support the inference that lighting and surrounding circumstances can establish that the victim could see the weapon and reasonably fear harm—key to “displaying” a deadly weapon/what appears to be a pistol.

5) Weight of the evidence deference and sentencing discretion

  • People v Wilder: Reinforced deference to the trial court’s credibility findings under weight review.
  • People v Fisher: Cited for the weight-of-the-evidence conclusion and also for assessing intent/serious injury based on the nature and persistence of harm.
  • People v Akins and People v Lewis: Supported the determination that the sentence was not harsh or excessive given criminal history and violent conduct.
  • People v Alvarez and People v Dorvil: Cited for the appellate standard in declining to reduce a sentence in the interest of justice after considering the totality of the circumstances.
  • People v Gill: Also cited in a preservation context (trial order of dismissal), underscoring that appellate claims (e.g., self-defense, insufficient proof of intent) may be unreviewable if not specifically raised at trial.

B. Legal Reasoning

1) Weapon counts: possession, predicate conviction, and the “temporary and lawful” claim

The court treated the “temporary and lawful” concept as a narrow exception-like theory that does not fit facts showing meaningful dominion and dangerous use. On this record, evidence supported that the pistol was kept in defendant’s residence (in his safe), was accessible during the dispute, and was used in a threatening way (pointed at the victim’s face). Those facts permitted the inference that the possession was neither momentary nor benign, defeating any characterization as “temporary and lawful.”

2) Assault in the second degree: “serious physical injury” through protracted impairment

The Third Department emphasized medical proof that the victim’s nose/septum injury produced continuing functional consequences: swelling and deviation consistent with fracture, severe septal deviation, and persistent inability to breathe well more than a year later, with surgery essentially required for resolution. That evidence supported “serious physical injury” based on a protracted impairment of health or bodily function, not merely transient pain or bruising.

3) Menacing in the second degree: display and reasonable fear

The court accepted the victim’s testimony that defendant pointed a loaded pistol at her face, and it relied on surrounding circumstances (including visibility/lighting in the room) to support that the victim could perceive the weapon and experience reasonable fear of physical injury or death, satisfying the statutory mens rea and act requirements.

4) Preservation and the structure of appellate review

Two procedural points shaped the appeal: (i) requesting lesser-included offenses forfeited legal-sufficiency review of those convictions, and (ii) arguments not made with specificity in a trial order of dismissal were unpreserved. Nonetheless, the court’s weight-of-the-evidence review required it to evaluate whether the People proved the elements beyond a reasonable doubt, providing a backdoor form of merits scrutiny even where strict legal-sufficiency review was unavailable for particular counts.

C. Impact

  • Domestic violence + firearms prosecutions: Strange illustrates how courts may reject “temporary and lawful” possession narratives where evidence shows the gun was stored at the defendant’s residence and used to escalate a confrontation. Future litigants should expect close attention to storage, access, duration, and “dangerous manner” of use.
  • Serious physical injury proof: The decision highlights that “serious physical injury” can be established through medical testimony showing long-term functional impairment (e.g., breathing obstruction and a deviated septum requiring surgery), even when the injury is localized and not life-threatening.
  • Trial strategy consequences: Defendants who request lesser-included offenses should anticipate forfeiture of certain appellate legal-sufficiency challenges. Preservation discipline in the trial order of dismissal remains critical, particularly for intent and justification defenses.

4. Complex Concepts Simplified

  • Legal sufficiency vs. weight of the evidence: “Legal sufficiency” asks whether any rational factfinder could convict when viewing evidence most favorably to the prosecution. “Weight of the evidence” is a broader review in which the appellate court considers credibility and relative strength of proof, while still deferring to the trial court’s ability to see and hear witnesses.
  • Lesser included offense (and forfeiture): A “lesser included” is a less serious crime whose elements are contained within the greater crime. When a defendant asks the court to consider a lesser, appellate courts may treat that as forfeiting a claim that the proof was legally insufficient for that lesser conviction.
  • “Serious physical injury” by “protracted impairment”: Serious injury is not limited to life-threatening harm. It can include an injury that causes a long-lasting impairment of a body function—here, ongoing breathing obstruction due to a deviated septum.
  • “Temporary and lawful” possession: New York recognizes that extremely brief, benign handling of a weapon in limited circumstances may not constitute criminal possession. But if the weapon is kept accessible, stored by the defendant, or used to threaten or escalate conflict, courts are likely to find the possession is not “temporary and lawful.”
  • Preservation: To raise many issues on appeal, the defense must specifically object or move at trial on the same grounds later argued on appeal (often via a trial order of dismissal). General objections typically do not preserve specific theories like justification/self-defense or lack of intent.

5. Conclusion

People v Strange affirms convictions arising from a violent domestic incident and, in doing so, underscores two practical rules: (1) “serious physical injury” can be proven through medical evidence of enduring functional impairment—here, a fractured/deviated septum with long-term breathing obstruction and near-certain need for surgery; and (2) claims of “temporary and lawful” firearm possession falter where the weapon is kept in the defendant’s home and used in a dangerous, confrontation-related manner. Procedurally, the case also serves as a reminder that lesser-included offense requests and incomplete trial-order preservation can significantly narrow appellate legal-sufficiency review.