| People v Cantave |
| 2012 NY Slip Op 01682 [93 AD3d 677] |
| March 6, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JeanCantave, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and William H. Branigan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered December 15, 2009, convicting him of assault in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant failed to raise any timely objections to the Supreme Court's Sandovalruling (see People v Sandoval, 34 NY2d 371 [1974]) and, therefore, to the extent thatthe defendant now raises such claims, they are not preserved for appellate review (seeCPL 470.05 [2]; People v Diaz,50 AD3d 919 [2008]; People vQuind, 1 AD3d 617 [2003]). In any event, the Supreme Court's Sandoval rulingwhich, inter alia, allowed inquiry into the facts underlying the defendant's previous felonyconviction, was not an improvident exercise of discretion (see People v Hayes, 97 NY2d203, 208 [2002]; People v Sharpe,87 AD3d 1168 [2011]). The defendant's felony conviction was relevant to the issue of hiscredibility because it demonstrated his willingness to put his own interests above those of society(see People v Bennette, 56 NY2d 142, 148 [1982]; People v Brink, 31 AD3d 1139, 1140-1141 [2006]).
The Supreme Court also properly refused to admit a recording of the defendant's own 911emergency call into evidence. The circumstances of the defendant's 911 call did not establish thatthe call was "[a]n excited utterance . . . made 'under the immediate and uncontrolleddomination of the senses, and during the brief period when consideration of self-interest couldnot have been brought fully to bear by reasoned reflection' " (People v Coward, 292AD2d 630 [2002], quoting People v Brown, 70 NY2d 513, 518 [1987]; see People vVasquez, 88 NY2d 561, 579 [1996]). In addition, the recording did not fall under the presentsense impression exception to the hearsay rule, as there was no evidence that the defendant madethe 911 call while he "was perceiving the event or condition, or immediately thereafter"(People v Brown, 80 NY2d 729, 732 [1993]; see People v Vasquez, 88 NY2d at578-579).
The defendant's claim that his medical records were improperly redacted to omit a statementthat he had been hit in his nose with a gun is unpreserved for appellate review (see CPL470.05 [2]). In any event, the Supreme Court properly redacted this statement from the medical[*2]records because it was not relevant to the defendant'sdiagnosis or treatment for a thumb injury and hand laceration (see People v Davis, 95AD2d 837, 838 [1983]; Passino v DeRosa, 199 AD2d 1017, 1018 [1993]; People vJackson, 124 AD2d 975 [1986]).
The defendant's contention that the Supreme Court's justification charge deprived him of afair trial is unpreserved for appellate review, as the defendant never objected to the court's mainor supplemental justification charge or requested a correction, amplification, or modification ofthat charge (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Battle, 73 AD3d 939, 940[2010]). In any event, the charge, taken as a whole, properly instructed the jury as to the defenseof justification, and was a correct statement of the law (see People v Fields, 87 NY2d821, 823 [1995]; People v Battle, 73 AD3d at 940; People v Abreu, 287 AD2d644 [2001]). Rivera, J.P., Eng, Hall and Sgroi, JJ., concur.