ITHACA, N.Y. – An Ithaca man, in custody for a 2015 shooting, is scheduled to be re-sentenced in Tompkins County Court after an appellate court found that the evidence in his 2016 trial was insufficient to support his assault conviction.

James Marshall faced multiple charges after police say he shot a person in the leg at a woman’s West Village apartment on June 25, 2015. After a trial in March 2016, on charges of first-degree assault, third-degree criminal possession of a weapon, and two counts of second-degree criminal possession of a weapon, Marshall was convicted on all charges.

During the trial, the victim, Earl Brooks, testified that he showed up to his ex-girlfriend’s apartment on the morning of the incident and she refused to let him inside. When he asked if there was another person inside, the woman denied that anyone else was there. She later testified that Marshall was inside, which she denied in hopes to avoid a fight between the two men.

Court records say Brooks waited outside the apartment for nearly two hours, and despite the woman’s efforts to avoid a confrontation, Brooks hit Marshall as soon as he saw him leave the apartment. During the fight that followed, Brooks realized he had been shot in the leg, and both he and the woman later testified that they saw Marshall holding a gun.

Related: Convicted Ithaca shooter sentenced to 13 years in prison

Ithaca City Court Judge Scott Miller sentenced Marshall to 10 years, the minimum sentence for the assault charge, with an additional 13 years each for the two second-degree criminal possession of a weapons charges, and two to four years for third-degree criminal possession of a weapon. The sentences were scheduled to run concurrently.

Records from Thursday’s appeal hearing say that in order to be charged with first-degree assault, the victim would have had to sustain a “serious physical injury,” causing the risk of death, or disfigurement or impairment to any body part.

Following the shooting, Brooks underwent two surgeries to repair a shattered tibia where pins were required to hold the bones in place. Four months later, the pins were removed and Brooks was required to wear a cast for nearly two months. While Brooks did deal with significant injuries, the Marshall’s attorney argued that it did not qualify for first-degree assault.

“Although the victim’s injuries are by no means trivial, they fall short of constituting injuries that create a substantial risk of death,” the document stated. “There was no evidence that the victim lost consciousness after being shot or that a vital organ was damaged. Nor was there any proof, lay or medical, indicating that the victim’s injuries caused a substantial risk of death or were life-threatening.”

While Marshall will still serve the 13-year sentence for the criminal possession of a weapon charges, Marshall’s first-degree assault charge has been reduced to first-degree attempted assault, which he will be re-sentenced for in Tompkins County Court.

Alyvia is a Crime Reporter with The Ithaca Voice. She graduated from Ithaca College with a degree in Journalism and Photography.