         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1240
KA 10-01983
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMISON EMANUEL, DEFENDANT-APPELLANT.


ROBERT TUCKER, PALMYRA, FOR DEFENDANT-APPELLANT.

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (DAVID V. SHAW OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Wayne County Court (John B.
Nesbitt, J.), rendered May 20, 2010. The judgment convicted
defendant, upon a nonjury verdict, of assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of assault in the second degree (Penal Law §
120.05 [7]). We reject defendant’s contention that the evidence
adduced at trial that the victim sustained a physical injury is
legally insufficient to support the conviction. Viewed in the light
most favorable to the prosecution (see People v Contes, 60 NY2d 620,
621), the evidence established that defendant punched the victim in
the face, causing him to fall down, lose consciousness, suffer a
seizure, and sustain lacerations to his face and the back of his head.
The evidence also established that the victim, defendant’s fellow
inmate, required immediate treatment at the emergency room to clean
and close his wounds and that he remained in the jail’s medical unit
for at least two days before returning to his housing pod. We thus
conclude that the evidence is legally sufficient to establish that the
victim sustained a physical injury (see People v Terry, 38 AD3d 1255,
lv denied 9 NY3d 852; People v Wooden, 275 AD2d 935, 936, lv denied 96
NY2d 740). In addition, viewing the evidence in light of the elements
of the crime in this nonjury trial (see People v Danielson, 9 NY3d
342, 349), we reject defendant’s further contention that the verdict
is against the weight of the evidence (see generally People v
Bleakley, 69 NY2d 490, 495).

     Defendant further contends that County Court erred in admitting
in evidence certain hearsay statements in the history portion of the
victim’s hospital records. Defendant failed to object to the
admission of the hospital records in evidence and thus failed to
                                 -2-                          1240
                                                         KA 10-01983

preserve his contention for our review (see CPL 470.05 [2]; People v
Anderson, 184 AD2d 1005, 1006, lv denied 80 NY2d 926). In any event,
the statements in the hospital records were properly admitted both
because they related to diagnosis and treatment and thus were
“admissible as an exception to the hearsay rule” (People v White, 306
AD2d 886, lv denied 100 NY2d 625; see People v Dennee, 291 AD2d 888,
889, lv denied 98 NY2d 650; see generally People v Ortega, 15 NY3d
610, 617), and because they had the requisite indicia of reliability
(see generally People v Brensic, 70 NY2d 9, 14, mot to amend
remittitur granted 70 NY2d 722).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
