Opinion
12123 Ind. No. 3248/14 Case No. 2018-4100
10-20-2020
The PEOPLE of the State of New York, Respondent, v. Luis GARCIA, Defendant-Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Karena Rahall of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Karena Rahall of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Malancha Chanda of counsel), for respondent.
Acosta, P.J., Mazzarelli, Moulton, Gonza´lez, JJ.
Judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered January 29, 2016, convicting defendant, after a jury trial, of attempted assault in the first degree and assault in the second degree, and sentencing him to an aggregate term of 3½ years, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–49, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). We find no basis for disturbing the jury's credibility determinations, including its resolution of any inconsistencies in the testimony. The credible evidence disproved defendant's justification defense.
The court providently exercised its discretion in admitting three recordings of 911 calls, because they were sufficiently contemporaneous to qualify for admission under the present sense impression exception (see People v. Vasquez, 88 N.Y.2d 561, 575, 647 N.Y.S.2d 697, 670 N.E.2d 1328 [1996] ). The stabbing occurred immediately before the calls were placed, and the callers described parts of an unfolding chain of events, including the victim's struggle with defendant immediately after the stabbing, people intervening to take the knife away from defendant, and people holding defendant down (see id. ; People v. Richardson, 300 A.D.2d 13, 14, 751 N.Y.S.2d 14 [1st Dept. 2002], lv denied 99 N.Y.2d 584, 755 N.Y.S.2d 720, 785 N.E.2d 742 [2003] ). Defendant's Confrontation Clause argument is unavailing because the statements were not testimonial, in that they were made for the purpose of summoning help for an ongoing emergency (see People v. Rodriguez, 166 A.D.3d 459, 460, 86 N.Y.S.3d 1 [1st Dept. 2018], lv denied 32 N.Y.3d 1209, 99 N.Y.S.3d 214, 122 N.E.3d 1127 [2019] ). Finally, the three recordings were not unduly cumulative to each other and to other evidence (see People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ).