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finding that the victim's testimony "established the existence of both physical impairment and substantial pain, notwithstanding the lack of medical evidence."
Summary of this case from S.R. v. TurnbullOpinion
April 13, 1993
Appeal from the Supreme Court, New York County (Thomas Galligan, J.).
After David Guidice got into a physical dispute with a co-worker at a construction site, his father, Anthony Guidice, arranged for co-defendant Smith — Anthony Guidice's nephew — and an unapprehended man to exact physical retribution. The assault was arranged by Anthony Guidice from his New York County office. Several of these telephone calls were recorded pursuant to electronic surveillance in an unrelated matter. David Guidice, James Smith, and the unapprehended man arrived at the work site. The unapprehended man beat the victim with a baseball bat.
Defendants' challenge to the legal sufficiency of the evidence that the victim had not suffered physical impairment or substantial pain is without merit. This essentially is a jury question (People v Rojas, 61 N.Y.2d 726, 727). The victim's testimony that he initially believed his arm was broken, that he suffered bruising, swelling, and prolonged pain, that he could not raise the arm, and temporarily was disabled from performing his usual jobs, established the existence of both physical impairment and substantial pain, notwithstanding the lack of medical evidence (People v Pope, 174 A.D.2d 319, lv denied 78 N.Y.2d 1079; People v Tejeda, 165 A.D.2d 683, affd 78 N.Y.2d 936).
The introduction of direct evidence against Anthony Guidice defeats his claim that a circumstantial evidence instruction was required (see, People v Rumble, 45 N.Y.2d 879). Nor was there a confrontation clause violation. We find that the redacted line sheets herein, used for the admissibility of the wiretap tapes, did not violate the hearsay rule because they qualified as business records under CPLR 4518. The statements of each declarant were introduced only against that declarant, with proper limiting instructions. To the extent that these statements were introduced as declarations against the declarant's penal interest (see, People v Brensic, 70 N.Y.2d 9, 15), appropriate use of this hearsay evidence would not invoke the nontestifying defendants' confrontation rights (see, Ohio v Roberts, 448 U.S. 56, 66). Moreover, the statements were not incriminating on their face, and we presume that the jury adhered to the court's limiting instructions (Richardson v Marsh, 481 U.S. 200, 208, 211; People v Neal, 181 A.D.2d 584, lv denied 79 N.Y.2d 1052). To whatever extent this evidence inferentially might have incriminated the respective codefendants, in view of the overwhelming evidence of guilt, impropriety, if any, was harmless beyond a reasonable doubt (People v Hamlin, 71 N.Y.2d 750, 756; People v Latine, 151 A.D.2d 279, lv denied 74 N.Y.2d 812).
We have considered defendants' remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Milonas, Kassal and Rubin, JJ.