| People v Almonte |
| 2018 NY Slip Op 02901 [160 AD3d 594] |
| April 26, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Emmanuel Almonte, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (David Crow of counsel), andDavis Polk & Wardwell LLP, New York (Stephen J. Yanni of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Andrew J. Zapata of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (James M. Kindler, J.), rendered August 2, 2013,convicting defendant, after a jury trial, of robbery in the second degree (two counts), attemptedassault in the first degree and assault in the second degree, and sentencing him to an aggregateterm of five years, unanimously affirmed.
The court properly admitted a 911 phone call between the victim and a 911 dispatcher underthe excited utterance exception to the hearsay rule (see People v Johnson, 1 NY3d 302, 306 [2003]; People vVasquez, 88 NY2d 561, 579 [1996]). The victim's statements were made within minutesafter he was attacked. The record indicates that he was still under the influence of the stress ofthe incident despite the lapse of time (see People v Brown, 70 NY2d 513, 520-522[1987]), and that his statements were spontaneous and trustworthy, and not the product ofreflection or possible fabrication. In any event, any error was harmless. The victim testified attrial, and "prior consistent statements are notably less prejudicial to the opposing party than otherforms of hearsay, since by definition the maker of the statement has said the same thing in courtas out of it, and so credibility can be tested through cross-examination" (People v Ludwig, 24 NY3d 221,230 [2014]).
Defendant failed to preserve the specific legal sufficiency claim he raises on appeal regardinghis attempted assault conviction, and we decline to review it in the interest of justice. As analternative holding, we reject it on the merits. We also find that the verdict was not against theweight of the evidence (see People vDanielson, 9 NY3d 342, 348-349 [2007]). The evidence supported the jury's finding thatdefendant shared his codefendant's intent to cause serious physical injury to the victim (see People v Degraffenreid, 138 AD3d456, 456-457 [1st Dept 2016], affd 29 NY3d 935 [2017]; Matter of Tatiana N., 73 AD3d186, 191 [1st Dept 2010]).
The court properly denied defendant's request to submit third-degree assault as a lesserincluded offense of second-degree assault. There was no reasonable view of the evidence, viewedmost favorably to defendant, that the injury at issue was inflicted without the use of a deadlyweapon or a dangerous instrument.
In imposing sentence, the court providently exercised its discretion in taking intoconsideration the fact that defendant absconded during trial. The court had no obligation to warndefendant that commission of a new criminal act (in this case bail jumping) would adversely[*2]affect his sentence upon conviction after trial;defendant's citation to cases involving conditions of negotiated pleas is misplaced. We perceiveno basis for reducing the sentence. Concur—Mazzarelli, J.P., Kapnick, Kahn, Kern, Singh,JJ.