Opinion
January 29, 1985
Appeal from the Genesee County Court, Morton, J.
Present — Dillon, P.J., Boomer, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment upon conviction of assault in the second degree (Penal Law, § 120.05, subd 2), defendant contends that the trial court abused its discretion in receiving into evidence three photographs, taken in a hospital emergency room, which depict head lacerations the victim suffered. Defendant also contends that the photographs should not have been admitted because the People did not produce them until after the trial had commenced. We disagree.
Photographic evidence should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant (see People v. Pobliner, 32 N.Y.2d 356, 369-370, cert den 416 U.S. 905). That was not the case here. The photographs were not gory and were probative of whether the defendant caused physical injury to the victim, an element the People were required to prove to sustain the charge of assault. On this record, we conclude that there was no abuse of discretion by the trial court in admitting the photographs in evidence (see People v. Bell, 63 N.Y.2d 796; People v. McKown, 71 A.D.2d 730, 731).
Although defendant was clearly entitled to production of the photographs in question (see CPL 240.20, subd 1, par [d]), defendant acknowledges that the prosecutor was unaware of the photographs (originally believed to have been lost) until shortly before trial and did not obtain possession of them until after the trial had commenced (see People v. Mayers, 100 A.D.2d 558, 559). The trial court, in response to defense counsel's objection, offered a continuance (see CPL 240.70, subd 1). Under these circumstances, we conclude that defendant was not denied due process of law (see People v. Napierala, 90 A.D.2d 689).