Opinion
2012-03-6
The PEOPLE, etc., respondent, v. Jean CANTAVE, appellant.
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William H. Branigan of counsel), for respondent.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered December 15, 2009, convicting him of assault in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to raise any timely objections to the Supreme Court's Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) and, therefore, to the extent that the defendant now raises such claims, they are not preserved for appellate review ( see CPL 470.05[2]; People v. Diaz, 50 A.D.3d 919, 855 N.Y.S.2d 647; People v. Quind, 1 A.D.3d 617, 767 N.Y.S.2d 660). In any event, the Supreme Court's Sandoval ruling which, inter alia, allowed inquiry into the facts underlying the defendant's previous felony conviction, was not an improvident exercise of discretion ( see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963; People v. Sharpe, 87 A.D.3d 1168, 930 N.Y.S.2d 453). The defendant's felony conviction was relevant to the issue of his credibility because it demonstrated his willingness to put his own interests above those of society ( see People v. Bennette, 56 N.Y.2d 142, 148, 451 N.Y.S.2d 647, 436 N.E.2d 1249; People v. Brink, 31 A.D.3d 1139, 1140–1141, 818 N.Y.S.2d 374).
The Supreme Court also properly refused to admit a recording of the defendant's own 911 emergency call into evidence. The circumstances of the defendant's 911 call did not establish that the call was “[a]n excited utterance ... made ‘under the immediate and uncontrolled domination of the senses, and during the brief period when consideration of self-interest could not have been brought fully to bear by reasoned reflection’ ” ( People v. Coward, 292 A.D.2d 630, 630, 739 N.Y.S.2d 612, quoting People v. Brown, 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515 [some internal quotation marks omitted]; see People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328). In addition, the recording did not fall under the present sense impression exception to the hearsay rule, as there was no evidence that the defendant made the 911 call while he “was perceiving the event or condition, or immediately thereafter” ( People v. Brown, 80 N.Y.2d 729, 732, 594 N.Y.S.2d 696, 610 N.E.2d 369; see People v. Vasquez, 88 N.Y.2d at 578–579, 647 N.Y.S.2d 697, 670 N.E.2d 1328).
The defendant's claim that his medical records were improperly redacted to omit a statement that he had been hit in his nose with a gun is unpreserved for appellate review ( see CPL 470.05[2] ). In any event, the Supreme Court properly redacted this statement from the medical records because it was not relevant to the defendant's diagnosis or treatment for a thumb injury and hand laceration ( see People v. Davis, 95 A.D.2d 837, 838, 463 N.Y.S.2d 876; Passino v. DeRosa, 199 A.D.2d 1017, 1018, 606 N.Y.S.2d 107; People v. Jackson, 124 A.D.2d 975, 509 N.Y.S.2d 230).
The defendant's contention that the Supreme Court's justification charge deprived him of a fair trial is unpreserved for appellate review, as the defendant never objected to the court's main or supplemental justification charge or requested a correction, amplification, or modification of that charge ( see CPL 470.05[2]; People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919; People v. Battle, 73 A.D.3d 939, 940, 899 N.Y.S.2d 878). In any event, the charge, taken as a whole, properly instructed the jury as to the defense of justification, and was a correct statement of the law ( see People v. Fields, 87 N.Y.2d 821, 823, 637 N.Y.S.2d 355, 660 N.E.2d 1134; People v. Battle, 73 A.D.3d at 940, 899 N.Y.S.2d 878; People v. Abreu, 287 A.D.2d 644, 731 N.Y.S.2d 868).