| People v Carson |
| 2015 NY Slip Op 02494 [126 AD3d 996] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Joseph Carson, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Jonathan Scharf of counsel; Radhika Deva on thebrief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered January 4, 2013, convicting him of assault in the third degree andharassment in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The complainant was standing on a sidewalk in Queens arguing with herex-boyfriend, the defendant, when he grabbed her cell phone and threw it to the ground.As the complainant bent down to pick up the cell phone, the defendant hit her in the headwith a gun, causing her to fall to the ground, after which she was unable to move forseveral minutes. She experienced a sharp, throbbing pain in her head, dizziness, and lossof hearing. After speaking with the police, the complainant was transported to a hospital,where she underwent a CT scan and was prescribed prescription pain killers. A weeklater, she was still experiencing pain, dizziness, and a headache. The complainant'shospital records and photographs taken at the hospital were admitted into evidence.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establishthe defendant's guilt of assault in the third degree beyond a reasonable doubt, includingthat he caused "physical injury" to the complainant (Penal Law§§ 10.00 [9]; 120.00 [1]; see People v Monserrate, 90 AD3d 785, 787-788 [2011];Matter of Ashley M., 35AD3d 612 [2006]; People vGerecke, 34 AD3d 1260, 1261 [2006]; People v Reid, 29 AD3d 712 [2006]; People vWilliams, 203 AD2d 608 [1994]). Moreover, upon our independent review pursuantto CPL 470.15 (5), we are satisfied that the verdict of guilt as to assault in the thirddegree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).
The audio recording of the 911 call that the complainant made after the attack wasproperly admitted as a present sense impression (see People v Buie, 86 NY2d501, 506 [1995]; People v Brown, 80 NY2d 729, 732 [1993]).
[*2] The defendant's remaining contentions are withoutmerit. Rivera, J.P., Balkin, Duffy and LaSalle, JJ., concur.