Opinion
2013-00799
03-25-2015
The PEOPLE, etc., 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 the brief), for respondent.
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 the brief), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
Opinion 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 and harassment 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 her ex-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 head with a gun, causing her to fall to the ground, after which she was unable to move for several minutes. She experienced a sharp, throbbing pain in her head, dizziness, and loss of 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 week later, she was still experiencing pain, dizziness, and a headache. The complainant's hospital records and photographs taken at the hospital were admitted into evidence.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of assault in the third degree beyond a reasonable doubt, including that he caused “physical injury” to the complainant (Penal Law §§ 10.00[9] ; 120.00 [1]; see People v. Monserrate, 90 A.D.3d 785, 787–788, 934 N.Y.S.2d 485 ; Matter of Ashley M., 35 A.D.3d 612, 825 N.Y.S.2d 748 ; People v. Gerecke, 34 A.D.3d 1260, 1261, 823 N.Y.S.2d 797 ; People v. Reid, 29 A.D.3d 712, 814 N.Y.S.2d 267 ; People v. Williams, 203 A.D.2d 608, 610 N.Y.S.2d 613 ). Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt as to assault in the third degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The audio recording of the 911 call that the complainant made after the attack was properly admitted as a present sense impression (see People v. Buie, 86 N.Y.2d 501, 506, 634 N.Y.S.2d 415, 658 N.E.2d 192 ; People v. Brown, 80 N.Y.2d 729, 732, 594 N.Y.S.2d 696, 610 N.E.2d 369 ).
The defendant's remaining contentions are without merit.