Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Jamison EMANUEL, Defendant–Appellant.
Robert Tucker, Palmyra, for Defendant–Appellant.Richard M. Healy, District Attorney, Lyons (David V. Shaw of Counsel), for Respondent.
Robert Tucker, Palmyra, for Defendant–Appellant.Richard M. Healy, District Attorney, Lyons (David V. Shaw of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of assault in the second degree (Penal Law § 120.05 [7] ). We reject defendant's contention that the evidence adduced at trial that the victim sustained a physical injury is legally insufficient to support the conviction. Viewed in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), the evidence established that defendant punched the victim in the face, causing him to fall down, lose consciousness, suffer a seizure, and sustain lacerations to his face and the back of his head. The evidence also established that the victim, defendant's fellow inmate, required immediate treatment at the emergency room to clean and close his wounds and that he remained in the jail's medical unit for at least two days before returning to his housing pod. We thus conclude that the evidence is legally sufficient to establish that the victim sustained a physical injury ( see People v. Terry, 38 A.D.3d 1255, 834 N.Y.S.2d 885, lv. denied 9 N.Y.3d 852, 840 N.Y.S.2d 778, 872 N.E.2d 891; People v. Wooden, 275 A.D.2d 935, 936, 713 N.Y.S.2d 415, lv. denied 96 N.Y.2d 740, 722 N.Y.S.2d 807, 745 N.E.2d 1030). In addition, viewing the evidence in light of the elements of the crime in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict is against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant further contends that County Court erred in admitting in evidence certain hearsay statements in the history portion of the victim's hospital records. Defendant failed to object to the admission of the hospital records in evidence and thus failed to preserve his contention for our review ( see CPL 470.05[2]; People v. Anderson, 184 A.D.2d 1005, 1006, 584 N.Y.S.2d 349, lv. denied 80 N.Y.2d 926, 589 N.Y.S.2d 854, 603 N.E.2d 959). In any
event, the statements in the hospital records were properly admitted both because they related to diagnosis and treatment and thus were “admissible as an exception to the hearsay rule” ( People v. White, 306 A.D.2d 886, 760 N.Y.S.2d 916, lv. denied 100 N.Y.2d 625, 767 N.Y.S.2d 409, 799 N.E.2d 632; see People v. Dennee, 291 A.D.2d 888, 889, 738 N.Y.S.2d 146, lv. denied 98 N.Y.2d 650, 745 N.Y.S.2d 508, 772 N.E.2d 611; see generally People v. Ortega, 15 N.Y.3d 610, 617, 917 N.Y.S.2d 1, 942 N.E.2d 210), and because they had the requisite indicia of reliability ( see generally People v. Brensic, 70 N.Y.2d 9, 14, 517 N.Y.S.2d 120, 509 N.E.2d 1226, mot. to amend remittitur granted 70 N.Y.2d 722, 519 N.Y.S.2d 641, 513 N.E.2d 1302).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.