| People v Osbourne |
| 2010 NY Slip Op 00288 [69 AD3d 764] |
| January 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Stanley G. Osbourne, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Margaret E. Mainusch and AndrewFukuda of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Jaeger, J.),rendered May 23, 2007, convicting him of assault in the first degree, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to establish his guiltbeyond a reasonable doubt is unpreserved for appellate review (see People v Hawkins, 11 NY3d484 [2008]). In any event, viewing the evidence in the light most favorable to theprosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legallysufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon ourindependent review pursuant to CPL 470.15 (5), we are satisfied that the verdict of guilt was notagainst the weight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The admission of an audiotape of an anonymous caller's statements to the 911 emergencytelephone operator did not violate the defendant's right to confrontation because the statementswere not testimonial (see Davis v Washington, 547 US 813 [2006]; People v Mitchell, 35 AD3d 507[2006]; People v Cato, 22 AD3d863 [2005]; People v Marino,21 AD3d 430 [2005]; People vColeman, 16 AD3d 254 [2005]).
Moreover, the 911 tape recording was also properly admitted into evidence under the presentsense impression exception to the hearsay rule. The call was made substantiallycontemporaneously with the caller's finding of the injured complainant (see People vVasquez, 88 NY2d 561, 575 [1996]; People v Brown, 80 NY2d 729, 734 [1993]; Lee v City of New York, 40 AD3d1048, 1049 [2007]; People vNeloms, 8 AD3d 136, 137 [2004]). The substance of the call was sufficientlycorroborated by other evidence (see People v Brown, 80 NY2d at 734-736; People vNeloms, 8 AD3d at 137).
The defendant's remaining contention is without merit. Mastro, J.P., Fisher, Belen andAustin, JJ., concur.