Where the complainant's medical records were generally admissible under the business records exception to the hearsay rule, the court's refusal, over defense objection, to redact a key statement within those records which did not meet the "necessary for treatment and diagnosis" requirement of that exception denied appellant a fair trial. ( People v Foster, 27 NY2d 47; People v Kohlmeyer, 284 NY 366; Williams v Alexander, 309 NY 283; People v Pitti, 262 AD2d 503; People v Goode, 179 AD2d 676; People v Singleton, 140 AD2d 388; People v Bailey, 252 AD2d 815; People v LaFontaine, 93 NY2d 849; People v Maker, 89 NY2d 456; People v Nieves, 67 NY2d 125.) Cyrus R. Vance, Jr., District Attorney, New York City ( Malancha Chanda and Richard Nahas of counsel), for respondent in the first above-entitled action.

The defendant's contention that the Supreme Court erred in failing to completely redact from his mother's medical records her account of her injuries and her claim that her assailant was her son is without merit. These statements were properly admitted pursuant to the business records exception to the hearsay rule ( see CPLR 4518), because they were relevant to the diagnosis and treatment of the victim's injuries, and likely were relied upon by hospital personnel in developing a discharge plan to ensure her safety ( see People v Ortega, 15 NY3d 610; Williams v Alexander, 309 NY 283, 288; People v Greenlee, 70 AD3d 966; People v Dagoberto, 16 AD3d 595; People v Goode, 179 AD2d 676).

Defendant's claim that the evidence of physical injury was legally insufficient to support the conviction of assault in the third degree with respect to victim Kevin Richards is not preserved for appellate review as defendant never asserted this claim at trial ( seeCPL 470.05[2]; People v. Hawkins, 11 NY3d 484, 492 [2008];People v. Williams, 23 AD3d 589 [2005];People v. Branch, 306 A.D.2d 537, 538 [2003] ). In any event, viewing the evidence in the light most favorable to the prosecution (People v. Contes, 60 N.Y.2d 620, 621 [1983] ), the evidence of “impairment of physical condition or substantial pain” (Penal Law § 10.00[9] ) was legally sufficient to support the conviction (People v. Chiddick, 8 NY3d 445, 447 [2007];People v. Henderson, 92 N.Y.2d 677, 680 [1999];People v. Travis, 273 A.D.2d 544, 548 [2000];People v. Goode, 179 A.D.2d 676 [1992] ).

Contrary to the defendant's argument, the testimony of the emergency room pediatrician as to the child's statement was properly admitted into evidence. The physician testified, at a pretrial hearing, that the statement was made in response to a question she asked in order to ascertain whether the child had any neurological injury or deficit. Since the statement was thus germane to the child's diagnosis and treatment, it falls within an exception to the rule against hearsay ( see People v James, 19 AD3d 616, 617; People v Dagoberto, 16 AD3d 595; People v Goode, 179 AD2d 676, 677). The admission of the statement also did not violate the defendant's constitutional right to confront the witnesses against him ( see Crawford v Washington, 541 US 36; People v Rawlins, 10 NY3d 136, 148, cert denied 557 US ___, 129 S Ct 2856; cf. People v Goldstein, 6 NY3d 119, 128-129, cert denied 547 US 1159; People v Rogers, 8 AD3d 888, 891). An out-of-court statement implicates the defendant's Sixth Amendment rights only when it is testimonial in nature ( see Davis v Washington, 547 US 813, 821-822; People v Rawlins, 10 NY3d at 148; People v Nieves-Andino, 9 NY3d 12, 15; People v Bradley, 8 NY3d 124, 126-127).

Moreover, the defense counsel was afforded an opportunity to cross-examine the complainant and any other witnesses regarding the content of the 911 tape ( see generally People v Farner, 234 AD2d 561), and the trial court fashioned an appropriate remedy for the violation ( see generally People v Kelly, 62 NY2d 516, 520-521; People v Civitello, 287 AD2d 784, 785; People v Emery, 159 AD2d 992, 993). The trial court properly admitted the statement in the complainant's hospital record that the complainant sustained an injury to her eye "after being punched," as the statement was relevant to the diagnosis and treatment of the complainant's injury ( see CPLR 4518; People v Dagoberto, 16 AD3d 595; People v Baltimore, 301 AD2d 610, 610-611; People v Goode, 179 AD2d 676, 677]). The defendants' remaining contention is without merit.

Plaintiffs' offer of proof indicates that a portion of the sealed records contains hospital records from Jacobi Medical Center including plaintiffs' respective intake statements that they were hit with a "crowbar." Apart from any credibility or self-defense issues, such statements would be relevant to the medical diagnosis or treatment of plaintiffs' injuries ( Williams v. Alexander, 309 NY 283, 287; People v. Edwards, 261 AD2d 899 [4th Dept 1999], lv denied 93 NY2d 1017; People v. Goode, 179 AD2d 676, 677 [2nd Dept 1992], lv denied 79 NY2d 1001; Prince, Richardson on Evidence §§ 8-309, 8-310 [Farrell 11th ed]). Furthermore any injuries such as bite marks and skin discolorations (depicted in photographs) were within the experience and observation of an ordinary layman and did not require expert medical testimony as to causation ( Ingleston v. Francis, 206 AD2d 745 [3rd Dept 1994]; Parrott v. Pelusio, 65 AD2d 914 [4th Dept 1978]).

The defendant's contention that the trial court erred in failing to completely redact the notations in the hospital records regarding the complainant's account of his injuries is without merit. The statement in the hospital records that the complainant "turned while man tried to stab him in the back," was properly admitted pursuant to the business records exception to the hearsay rule ( see CPLR 4518), because it was relevant to the diagnosis and treatment of the complainant's injuries ( see People v. Baltimore, 301 AD2d 610; People v. Goode, 179 AD2d 676). The defendant's remaining contentions are without merit.

Supreme Court did not err in admitting the out-of-court declarations of the complainant as excited utterances ( see People v. Johnson, 1 NY3d 302, 306; People v. Vasquez, 88 NY2d 561, 579; People v. Brown, 70 NY2d 513, 518; People v. Edwards, 47 NY2d 493, 497). With respect to defendant's challenge to the admission of certain recitals in the complainant's hospital records, we conclude that the fact of the rape was relevant to diagnosis and treatment ( see People v. Edwards, 261 AD2d 899, 900, lv denied 93 NY2d 1017; People v. Goode, 179 AD2d 676, 677, lv denied 79 NY2d 1001; see generally Williams v. Alexander, 309 NY 283, 287-288). There is no merit to the contention that the court erroneously admitted secondary evidence of the complainant's identification of defendant ( see generally People v. Buie, 86 NY2d 501, 510; People v. Caserta, 19 NY2d 18, 21; People v. Trowbridge, 305 NY 471, 474-476).

Equally without merit is the defendant's contention that the trial court erred in failing to completely redact the notations in the hospital records regarding the complainant's account of her injuries. The statement in the hospital records that the complainant was "kicked, slapped, pulled by her hair and had a knife to her neck," was properly admitted pursuant to the business records exception to the hearsay rule (see CPLR 4518), because it was relevant to the diagnosis and treatment of the complainant's injuries (see People v. Goode, 179 A.D.2d 676). The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

We disagree. Because that statement was relevant to the victim's diagnosis and treatment, that portion of the hospital records was admissible under the business records exception to the hearsay rule ( see, CPLR 4518 [a]; Williams v. Alexander, 309 N.Y. 283, 287-288; People v. Goode, 179 A.D.2d 676, 677, lv denied 79 N.Y.2d 1001; People v. Archie, 167 A.D.2d 925, 926, lv denied 77 N.Y.2d 991; People v. Singleton, 140 A.D.2d 388, 389).