PEOPLE v. BRADLEY (2005)

 Defendant appeals from a judgment convicting him upon a jury verdict of rape in the first degree (Penal Law § 130.35[1] ) and sentencing him to a determinate term of imprisonment of seven years followed by three years of postrelease supervision.   Defendant's contention based on the Confrontation Clause (U.S. Const. 6th Amend.;  N.Y. Const., art. I, § 6) is not preserved for our review (see People v. Kello, 96 N.Y.2d 740, 743-744, 723 N.Y.S.2d 111, 746 N.E.2d 166).   In any event, the contention lacks merit, inasmuch as the declarant (here, the complainant) testified and was confronted and cross-examined by defendant (see Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 1369 n. 9, 158 L.Ed.2d 177).

 Supreme Court did not err in admitting the out-of-court declarations of the complainant as excited utterances (see People v. Johnson, 1 N.Y.3d 302, 306, 772 N.Y.S.2d 238, 804 N.E.2d 402;  People v. Vasquez, 88 N.Y.2d 561, 579, 647 N.Y.S.2d 697, 670 N.E.2d 1328;  People v. Brown, 70 N.Y.2d 513, 518, 522 N.Y.S.2d 837, 517 N.E.2d 515;  People v. Edwards, 47 N.Y.2d 493, 497, 419 N.Y.S.2d 45, 392 N.E.2d 1229).   With respect to defendant's challenge to the admission of certain recitals in the complainant's hospital records, we conclude that the fact of the rape was relevant to diagnosis and treatment (see People v. Edwards, 261 A.D.2d 899, 900, 690 N.Y.S.2d 807, lv. denied 93 N.Y.2d 1017, 697 N.Y.S.2d 576, 719 N.E.2d 937;  People v. Goode, 179 A.D.2d 676, 677, 578 N.Y.S.2d 611, lv. denied 79 N.Y.2d 1001, 584 N.Y.S.2d 456, 594 N.E.2d 950;  see generally Williams v. Alexander, 309 N.Y. 283, 287-288, 129 N.E.2d 417).   There is no merit to the contention that the court erroneously admitted secondary evidence of the complainant's identification of defendant (see generally People v. Buie, 86 N.Y.2d 501, 510, 634 N.Y.S.2d 415, 658 N.E.2d 192;  People v. Caserta, 19 N.Y.2d 18, 21, 277 N.Y.S.2d 647, 224 N.E.2d 82;  People v. Trowbridge, 305 N.Y. 471, 474-476, 113 N.E.2d 841).

The court did not err in denying defendant's Batson motion (see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69).   The court properly determined that the prosecutor's explanations were race-neutral, in satisfaction of the People's burden, and not pretextual, as argued by defendant (see People v. Harris, 1 A.D.3d 881, 882, 767 N.Y.S.2d 725, lv. denied 2 N.Y.3d 740, 778 N.Y.S.2d 466, 810 N.E.2d 919;  People v. Welch, 298 A.D.2d 903, 747 N.Y.S.2d 843, lv. denied 99 N.Y.2d 565, 754 N.Y.S.2d 218, 784 N.E.2d 91;  see generally People v. Smocum, 99 N.Y.2d 418, 422-423, 757 N.Y.S.2d 239, 786 N.E.2d 1275).

The evidence is legally sufficient to support the conviction and the verdict is not against the weight of the evidence (see People v. Meagher, 4 A.D.3d 828, 829, 771 N.Y.S.2d 777, lv. denied 3 N.Y.3d 644, 782 N.Y.S.2d 415, 816 N.E.2d 205;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant was not deprived of a fair trial by prosecutorial misconduct (see People v. Wilkens, 8 A.D.3d 1074, 1075, 778 N.Y.S.2d 252, lv. denied 3 N.Y.3d 683, 784 N.Y.S.2d 21, 817 N.E.2d 839;  People v. West, 4 A.D.3d 791, 792, 772 N.Y.S.2d 166).   The sentence is not unduly harsh or severe.   We have considered the remaining contentions of defendant, including the contention set forth in his pro se supplemental brief, and conclude that they are without merit.

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

MEMORANDUM: