The People of the State of New York, Respondent, v. Stacey Jackson, Defendant–Appellant.  Ind. No. (2021)

Case No.2019–1857

Robert S. Dean, Center for Appellate Litigation, New York (Emilia King–Musza of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Andrew E. Seewald of counsel), for respondent.

Judgment, Supreme Court, New York County (Erika M. Edwards, J.), rendered October 30, 2018, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of 41/212 years, unanimously affirmed.

Defendant's legal sufficiency claim 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 NY3d 342, 348–349 [2007] ).  There is no basis for disturbing the jury's credibility determinations, including those relating to the victim's testimony that defendant cut him with a box cutter.  Moreover, that testimony was corroborated by medical evidence.

The victim's 911 call was properly admitted under both the excited utterance and present sense impression exceptions to the hearsay rule (see People v. Fratello, 92 N.Y.2d 565, 570–571 [1998], cert denied 526 U.S. 1068 [1999] );  People v. Brown, 80 N.Y.2d 729, 732–736 [1993] ).  The record supports inferences that at the time of the call the victim was still under the influence of the stress of being assaulted, as well as that the substantial contemporaneity and corroboration requirements for admission of a present sense impression were met (see id. at 734;  Guide to N.Y. Evid rules 8:17, Excited Utterance;  8:29, Present Sense Impression).  In any event, any error in the admission of the 911 call was harmless.  The victim testified at trial, and his credibility was fully tested through cross-examination (see People v. Ludwig, 24 NY3d 221, 230 [2014] ).

Defendant, who did not request any further inquiry, and expressly requested that the juror remain, failed to preserve his claim that the court should have made a further inquiry and specific findings in response to indications that a sitting juror might be having difficulty speaking and understanding English.  We decline to review this claim in the interest of justice.  As an alternative holding, we find that the court's inquiry was adequate, and that it established the juror's ability to serve.

We perceive no basis for reducing the sentence.