| People v McKenzie |
| 2018 NY Slip Op 03910 [161 AD3d 703] |
| May 31, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Elvis McKenzie, Appellant. |
Rosemary Herbert, Office of the Appellate Defender, New York (Daniel R. Lambright ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Rebecca Hausner of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered January20, 2015, as amended March 31, 2015, convicting defendant, after a jury trial, of assault in thefirst degree, robbery in the first degree (two counts), robbery in the second degree and attemptedrobbery in the third degree, and sentencing him, as a second felony offender, to an aggregate termof 15 years, unanimously affirmed.
We reject defendant's challenge to the sufficiency of the evidence supporting the seriousphysical injury element of the convictions relating to a robbery victim who was stabbed. Theevidence, including expert medical testimony, established serious physical injury under thetheory of creating a substantial risk of death (Penal Law § 10.00 [10]). Theattending physician testified that the three-inch cut behind the victim's ear, even though not deep,posed a substantial risk of death because of its very close proximity to the victim's carotid arteryand jugular vein (see People vJones, 38 AD3d 352 [1st Dept 2007], lv denied 9 NY3d 846 [2007]).
The court providently exercised its discretion in permitting the People to impeach one of thevictims with his grand jury testimony that he had previously identified defendant at a lineup(see CPL 60.35 [1]; People v Duncan, 46 NY2d 74, 80 [1978]). The victimtestified at trial that he had seen the tall, slim robber who attacked him a thousand times in theneighborhood, but did not see his attacker in court, and he specifically testified that this was notdue to his inability to recall defendant's appearance, but because he did not see "anybody [he]recognize[d]." This testimony, viewed in the context of his "flippant attitude" throughout hisdirect testimony, as noted by the court, and his apparent efforts to undermine the People's case,caused the kind of affirmative damage that permits impeachment of one's own witness (seePeople v De Jesus, 101 AD2d 111, 113-114 [1st Dept 1984], affd 64 NY2d 1126[1985]; see also People v Bynum, 275 AD2d 251 [1st Dept 2000], lv denied 95NY2d 961 [2000]).
The court also providently exercised its discretion in permitting the People to introduce tworecorded phone calls defendant made while in custody awaiting trial. Neither call could beinterpreted as referring to any uncharged bad acts, and any ambiguity as to whether theyconstituted admissions to the charged crimes went to the weight to be given the recordings, nottheir admissibility (People v Moore,118 AD3d 916, 918 [2d Dept 2014], lv denied 24 NY3d 1086 [2014]; People vFrias, 250 AD2d 495, 496 [1st Dept 1998], lv denied 92 NY2d 982 [1998]). To theextent defendant is claiming that the calls contained hearsay, that claim is unpreserved and wedecline to review it in the interest of justice. As an alternative holding, we also reject it on themerits.
In any event, any error either in permitting the impeachment of the prosecution's own witnessor in receiving the recorded calls was harmless (see People v Crimmins, 36 NY2d 230[1975]). Concur—Sweeny, J.P., Richter, Andrias, Kahn, Moulton, JJ.