PEOPLE v. BRYANT (2006)

 Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, murder in the second degree (Penal Law § 125.25 [1] ) and two counts of assault in the third degree (§ 120.00[1] ).   Defendant failed to preserve for our review his contention that Supreme Court denied him his right to confront the witnesses against him by admitting in evidence the autopsy report and the statements made by the victim to a police officer on September 9, 2001 (see People v. Kello, 96 N.Y.2d 740, 743-744, 723 N.Y.S.2d 111, 746 N.E.2d 166;  People v. Bradley, 15 A.D.3d 840, 841, 788 N.Y.S.2d 767, lv. denied 4 N.Y.3d 851, 797 N.Y.S.2d 425, 830 N.E.2d 324;  see generally U.S. Const. Sixth Amend.;  Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177).   In any event, we conclude that defendant's contention lacks merit.   The autopsy report, which was admitted in evidence as a business record, does not for the most part constitute testimonial evidence (see People v. Durio, 7 Misc.3d 729, 734-736, 794 N.Y.S.2d 863;  State v. Cutro, 365 S.C. 366, 378, 618 S.E.2d 890, 896;  State v. Leonard, 915 So.2d 829, 832-833 [La.App.];  Moreno Denoso v. State, 156 S.W.3d 166, 181-182 [Tex.App.];  Perkins v. State, 897 So.2d 457, 462-465 [Ala.Cr.App.];   see also State v. Lackey, 280 Kan. 190, 206-215, 120 P.3d 332, 348-352;  cf. Smith v. State, 898 So.2d 907, 915-918 [Ala.Cr.App.];   see generally Crawford, 541 U.S. at 56, 124 S.Ct. 1354).   To the limited extent that the autopsy report may be deemed to contain testimonial evidence, i.e., the opinions of the pathologist, we note that those opinions were not contested by defendant, who testified at trial and admitted causing the victim's death.   We thus conclude that defendant's right of confrontation was not violated by the admission of the autopsy report generally and that, to the limited extent that there may have been any error, there was no possibility of prejudice to defendant (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787).

 With respect to the victim's statements of September 9, 2001, we conclude that defendant's right of confrontation was not violated by the admission thereof.   Those statements were made by the victim outside the context of any “structured police questioning” (Crawford, 541 U.S. at 53 n. 4, 124 S.Ct. 1354), and thus those statements did not constitute testimonial evidence (see People v. Paul, 25 A.D.3d 165, 169-170, 803 N.Y.S.2d 66, lv. denied 6 N.Y.3d 752, 757, 810 N.Y.S.2d 420, 425, 843 N.E.2d 1160, 1165;  People v. Bradley, 22 A.D.3d 33, 42-43, 799 N.Y.S.2d 472).   Contrary to defendant's further contention, the court properly determined that those statements were admissible under the excited utterance exception to the hearsay rule (see People v. Seymour, 183 A.D.2d 35, 38-40, 588 N.Y.S.2d 551, lv. denied 81 N.Y.2d 766, 594 N.Y.S.2d 729, 610 N.E.2d 402).   The court properly determined that “at the time the utterance[s were] made [the victim] was in fact under the stress of excitement caused by an external event sufficient to still ․ her reflective faculties” (People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402;  see People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229), including both the physical and emotional stress of the beating earlier administered by defendant and the stress of being confined in the house with defendant following the attack.

Finally, defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence with respect to the conviction of assault in the third degree in connection with the incident occurring on November 19, 2001 (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396;  People v. Allen, 1 A.D.3d 947, 948, 767 N.Y.S.2d 717, lv. denied 1 N.Y.3d 594, 776 N.Y.S.2d 226, 808 N.E.2d 362).   In any event, we conclude that the evidence is legally sufficient to establish that the victim sustained the requisite physical injury, thus supporting that conviction (see People v. Bowen, 17 A.D.3d 1054, 1055-1056, 794 N.Y.S.2d 203, lv. denied 5 N.Y.3d 759, 801 N.Y.S.2d 254, 834 N.E.2d 1264;  People v. Goico, 306 A.D.2d 828, 828-829, 761 N.Y.S.2d 562;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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

MEMORANDUM: