| People v Emanuel |
| 2011 NY Slip Op 08064 [89 AD3d 1481] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jamison Emanuel,Appellant. |
—[*1] Richard M. Healy, District Attorney, Lyons (David V. Shaw of counsel), for respondent.
Appeal from a judgment of the Wayne County Court (John B. Nesbitt, J.), rendered May 20,2010. The judgment convicted defendant, upon a nonjury verdict, of assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of assaultin the second degree (Penal Law § 120.05 [7]). We reject defendant's contention that theevidence adduced at trial that the victim sustained a physical injury is legally insufficient to support theconviction. Viewed in the light most favorable to the prosecution (see People v Contes, 60NY2d 620, 621 [1983]), 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 theback of his head. The evidence also established that the victim, defendant's fellow inmate, requiredimmediate treatment at the emergency room to clean and close his wounds and that he remained in thejail's medical unit for at least two days before returning to his housing pod. We thus conclude that theevidence is legally sufficient to establish that the victim sustained a physical injury (see People v Terry, 38 AD3d 1255[2007], lv denied 9 NY3d 852 [2007]; People v Wooden, 275 AD2d 935, 936[2000], lv denied 96 NY2d 740 [2001]). In addition, viewing the evidence in light of theelements of the crime in this nonjury trial (seePeople v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention thatthe verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d490, 495 [1987]).
Defendant further contends that County Court erred in admitting in evidence certain hearsaystatements in the history portion of the victim's hospital records. Defendant failed to object to theadmission 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 AD2d 1005, 1006 [1992], lvdenied 80 NY2d 926 [1992]). In any event, the statements in the hospital records were properlyadmitted both because they related to diagnosis and treatment and thus were "admissible as anexception to the hearsay rule" (People v White, 306 AD2d 886 [2003], lv denied 100NY2d 625 [2003]; see People v Dennee, 291 AD2d 888, 889 [2002], lv denied 98NY2d 650 [2002]; see generally People vOrtega, 15 NY3d 610, 617 [2010]), and because they had the requisite indicia of reliability(see generally People v Brensic, 70 NY2d 9, 14 [1987], mot to amend remittitur granted70 NY2d 722 [1987]). Present—Centra, J.P., Fahey, Peradotto, Lindley and Martoche,JJ.