PEOPLE v. RAMIREZ (2023)

Judgment, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered December 2, 2019, convicting defendant, after a jury trial, of assault in the first degree, and sentencing him to a term of nine years, unanimously affirmed.

Hospital records fall within the business records exception to the hearsay rule when they reflect “acts, occurrences or events that relate to diagnosis, prognosis or treatment or are otherwise helpful to an understanding of the medical or surgical aspects” of the patient's hospitalization (People v. Ortega, 15 N.Y.3d 610, 617, 917 N.Y.S.2d 1, 942 N.E.2d 210 [2010] [internal quotation marks omitted]).  Here, while a portion of the statements at issue may have provided information that would be relevant for purposes of medical diagnosis or treatment, any error in ordering the statements redacted was harmless in light of the evidence supporting the conviction (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]).

Defendant's constitutional challenge to the prosecutor's summation is unpreserved (see CPL 470.05[2];  People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383 [1986]), and we decline to review it in the interest of justice.  As an alternative holding, we find no basis for reversal (see People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572 [1st Dept. 1997], lv denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724 [1998];  People v. D'Alessandro, 184 A.D.2d 114, 118–119, 591 N.Y.S.2d 1001 [1st Dept. 1992], lv denied 81 N.Y.2d 884, 597 N.Y.S.2d 945, 613 N.E.2d 977 [1993]).  The remarks at issue constituted permissible comment based on the evidence.

We perceive no basis for reducing the sentence.