| People v Baught |
| 2016 NY Slip Op 03183 [138 AD3d 1129] |
| April 27, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v James Baught, Appellant. |
Lynn W. L. Fahey, New York, NY (John B. Latella and Ron Zapata of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove, AntheaH. Bruffee, and Davis Polk & Wardwell LLP [Lindsay Schare], of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered August 12, 2014, convicting him of attempted assault in thesecond degree and criminal contempt in the second degree (seven counts), after a nonjurytrial, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to prove thedefendant's guilt of attempted assault in the second degree beyond a reasonable doubt.Moreover, in fulfilling our responsibility to conduct an independent review of the weightof the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we find thatthe verdict of guilt of that crime was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Contrary to the defendant's contention, the Supreme Court properly admitted intoevidence, as an excited utterance, his mother's statement to a police officer accusing himof assaulting her and the admission of the statement did not violate his right toconfrontation. The circumstances surrounding the mother's statement and her advancedage warrant the conclusion that the statement was not made "under the impetus of studiedreflection" (People v Edwards, 47 NY2d 493, 497 [1979]), and the statement wasnontestimonial in nature because it was made spontaneously and was not the result ofpolice interrogation (see Peoplev Johnson, 66 AD3d 703 [2009]; People v Medina, 53 AD3d 1046 [2008]; People v Gantt, 48 AD3d59, 70 [2007]; People vRivera, 8 AD3d 53 [2004]; see also Crawford v Washington, 541 US 36,51 [2004]; cf. People vPorco, 71 AD3d 791 [2010], affd 17 NY3d 877 [2011]).
The defendant's contention that the Supreme Court erred in failing to completelyredact from his mother's medical records her account of her injuries and her claim thather assailant was her son is without merit. These statements were properly admittedpursuant to the business [*2]records exception to thehearsay rule (see CPLR 4518), because they were relevant to the diagnosis andtreatment of the victim's injuries, and likely were relied upon by hospital personnel indeveloping a discharge plan to ensure her safety (see People v Ortega, 15 NY3d 610 [2010]; Williams vAlexander, 309 NY 283, 288 [1955]; People v Greenlee, 70 AD3d 966 [2010]; People v Dagoberto, 16 AD3d595 [2005]; People v Goode, 179 AD2d 676 [1992]).
The defendant's contention that his trial counsel's failure to preserve certain claimsfor appellate review constituted ineffective assistance of counsel is without merit (see People v Stultz, 2 NY3d277, 287 [2004]).
The defendant's remaining contentions are unpreserved for appellate review and, inany event, without merit. Dillon, J.P., Austin, Miller and LaSalle, JJ., concur.