| People v Livrieri |
| 2015 NY Slip Op 01725 [125 AD3d 579] |
| February 26, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v James Livrieri, Appellant. |
Kliegerman & Joseph, LLP, New York (Michael P. Joseph of counsel), forappellant.
Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), renderedSeptember 4, 2013, convicting defendant, after a jury trial, of three counts ofstrangulation in the second degree and two counts of assault in the second degree, andsentencing him to an aggregate term of 5
The court properly admitted evidence of uncharged crimes to complete the victim'snarrative, to provide background information explaining the abusive relationshipbetween defendant and the victim, and to place the events in a believable context (see People v Leeson, 12 NY3d823, 827 [2009]; People vDorm, 12 NY3d 16, 19 [2009]; People v Steinberg, 170 AD2d 50, 72-74[1991], affd 79 NY2d 673 [1992]). This evidence was not excessive or undulyinflammatory, and its probative value outweighed its prejudicial effect, which wasminimized by the court's limiting instructions.
The court properly admitted the victim's medical records, including references todomestic violence, under the business records exception to the hearsay rule (seeCPLR 4518 [a]). Such statements were part of the attending physician's diagnosis, andwere relevant to diagnosis and treatment, since "[i]n addition to physical injuries, avictim of domestic violence may have a whole host of other issues to confront, includingpsychological and trauma issues that are appropriately part of medical treatment" (People v Ortega, 15 NY3d610, 619 [2010]).
The court properly admitted defendant's recorded telephone calls, made whileincarcerated, which included abusive remarks by defendant about the victim and effortsby defendant to conspire with others to prevent the victim from testifying. All of thisevidence was relevant to motive and consciousness of guilt, and it was not undulyprejudicial.
The court properly admitted a portion of a 911 call under the excited utteranceexception [*2]to the hearsay rule (see People v Johnson, 1 NY3d302 [2003]; People v Edwards, 47 NY2d 493 [1979]). The tape of the callreveals that the victim was in an agitated state and was still operating under the influenceof defendant's attack, notwithstanding intervening events. Concur—Gonzalez,P.J., Tom, Richter, Manzanet-Daniels and Kapnick, JJ.