Opinion
KA 00-02740
May 3, 2002.
Appeal from a judgment of Supreme Court, Erie County (Rossetti, J.), entered July 16, 1999, convicting defendant after a jury trial of, inter alia, assault in the first degree.
DAVID J. PAJAK, BUFFALO, FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant failed to preserve for our review his contention that Supreme Court erred in permitting the prosecutor to cross-examine the codefendant with respect to those parts of the codefendant's intercepted telephone conversation implicating defendant ( see CPL 470.05; People v. Molling, 238 A.D.2d 915, 915; People v. Johnson [Clarence], 224 A.D.2d 635, 637-638, lv denied 88 N.Y.2d 849). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). The court properly precluded defendant from introducing evidence concerning his reputation for truth and veracity where, as here, that evidence did not relate to the traits involved in the charges against him ( see People v. Fanning, 209 A.D.2d 978, 978-979, lv denied 85 N.Y.2d 908; People v. Sullivan, 177 A.D.2d 673, lv denied 79 N.Y.2d 864). Although the court erred in limiting defendant's introduction of evidence with respect to defendant's reputation for peacefulness ( see generally People v. Bouton, 50 N.Y.2d 130, 138-140), that error is harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241-242).
In moving to suppress his statement to the police, defendant did not allege that the statement was the product of an illegal arrest. "As a result, the People were not required to submit proof that the arrest was supported by probable cause," and defendant's present contention is unpreserved for our review ( People v. Purcelle, 282 A.D.2d 824, 824-825; see also People v. Smith, 252 A.D.2d 737, 738, lv denied 92 N.Y.2d 1038). The court properly precluded defendant from introducing evidence concerning entries in the hospital record of the victim that were not germane to his treatment or diagnosis ( see Musaid v. Mercy Hosp. of Buffalo, 249 A.D.2d 958, 959), expert testimony with respect to the victim's veracity and suggestibility ( see People v. Johnston, 273 A.D.2d 514, 517-518, lv denied 95 N.Y.2d 935), the mental health records of the victim ( see People v. Washington, 221 A.D.2d 391, 392, lv denied 87 N.Y.2d 926) and evidence contradicting the codefendant's testimony on a collateral matter ( see Badr v. Hogan, 75 N.Y.2d 629, 634-635). The evidence of serious physical injury is legally sufficient to support defendant's conviction of assault in the first degree (Penal Law § 120.10, [3]) and assault in the second degree (§ 120.05 [8]; see People v. McCann, ___ A.D.2d ___ [decided Mar. 15, 2002]). Defendant failed to preserve for our review his contention that his conviction of unlawful imprisonment in the first degree merged with his conviction of assault in the second degree ( see People v. Balde, 260 A.D.2d 579, lv denied 93 N.Y.2d 966), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [a] , supra). Contrary to the further contention of defendant, he may be held liable for intentionally aiding the codefendant to engage in conduct constituting the offense of assault in the first degree under the first count of the indictment ( see Penal Law § 120.10, supra) where, as here, the proof establishes that defendant acted "with the mental culpability required for the commission" of that offense, i.e., recklessness (§ 20.00; see People v. Flayhart, 72 N.Y.2d 737, 741). The sentence is not unduly harsh or severe.