PEOPLE v. WOOD (2018)

Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered January 6, 2015, convicting defendant, after a jury trial, of assault in the first degree and criminal possession of a weapon in the fourth degree, and sentencing him to an aggregate term of 51/212 years, unanimously affirmed.

Defendant's legal sufficiency claim relating to the serious physical injury element of first-degree assault is unpreserved, and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  The evidence established that the victim's injury created a “substantial risk of death” (Penal Law § 10.00[10] ).  The attending physician testified that the victim arrived at the hospital in “critical condition,” meaning his injury, if not addressed, could result in his death, and that the stab wound to the victim's neck posed a substantial risk of death because of its location (see People v. Jones, 38 A.D.3d 352, 832 N.Y.S.2d 180 [1st Dept. 2007], lv denied 9 N.Y.3d 846, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007] ).

The court providently exercised its discretion in admitting the statement of a deceased declarant as an excited utterance, and admission of the statement did not violate the Confrontation Clause (see People v. Paul, 25 A.D.3d 165, 168, 803 N.Y.S.2d 66 [1st Dept. 2005], lv denied 6 N.Y.3d 752, 810 N.Y.S.2d 420, 843 N.E.2d 1160 [2005] ).  The police arrived at a shelter within minutes of learning of an assault in progress involving a knife, and saw a trail of blood, but had not found the weapon or the assailant.  The declarant's excited utterance was not testimonial, because it was provided to help the police determine what happened and ensure the safety of other persons (Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 [2006];  People v. Nieves–Andino, 9 N.Y.3d 12, 15–16, 840 N.Y.S.2d 882, 872 N.E.2d 1188 [2007] ).  To the extent there was any error, it was harmless.