Opinion
158.
Decided December 18, 2003.
De Nice Powell, for appellant.
Thomas S. Berkman, for respondent.
Chief Judge Kaye and Judges Smith, Ciparick, Rosenblatt, Graffeo and Read concur.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant was convicted of assault in the first degree, upon a jury verdict, arising from an incident in a rooming house where both he and the complainant resided. Defendant interposed a defense of justification. The trial court admitted complainant's hospital record into evidence, but redacted a notation by a resident physician stating that it was impossible to obtain the complainant's consent to surgery because he was too drunk. Defendant claims that the redaction of this information was error. We note, however, that defendant had the laboratory results, showing complainant's toxicology level, available for his use. Moreover, defendant did not rely on the purported intoxication of the complainant. We therefore conclude that the trial court properly exercised its discretion in redacting the notation.
Finally, the court did not violate defendant's right to be present during the issuance of supplemental jury instructions. Defendant failed to come forward with substantial evidence to rebut the presumption of regularity that attaches to all criminal proceedings (see People v. Foster, 1 N.Y.3d 44, [2003]; see generally People v. Harris, 61 N.Y.2d 9, 16; People v. Richetti, 302 N.Y. 290, 298).
Order affirmed, in a memorandum.