PEOPLE v. ROMAN (2005)

Appeal from a judgment of the Supreme Court (Lamont, J.), entered November 21, 2003 in Albany County, upon a verdict convicting defendant of the crime of assault in the second degree.

 After a jury trial, defendant was convicted of one count of assault in the second degree and sentenced to a prison term of seven years, with five years of postrelease supervision.   Initially, we find no merit to defendant's challenge to the sufficiency of the evidence.   Viewed most favorably to the prosecution, the victim's account and the medical testimony established beyond a reasonable doubt all of the elements of assault in the second degree, including intent to cause serious physical injury (see Penal Law § 120.05 [1];  People v. Gannon, 301 A.D.2d 873, 873, 754 N.Y.S.2d 107 [2003];  People v. Miller, 290 A.D.2d 814, 815, 736 N.Y.S.2d 773 [2002], lv. denied 98 N.Y.2d 678, 746 N.Y.S.2d 467, 774 N.E.2d 232 [2002] ).   Nor is the jury's verdict contrary to the weight of the evidence, despite defendant's allegation that the victim's injuries were caused by an epileptic seizure (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];  People v. Richard, 232 A.D.2d 872, 873, 649 N.Y.S.2d 509 [1996], lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994 [1997] ).

 Defendant's postarrest statement to the police that he had been in the victim's apartment but did not cause the victim's injuries was spontaneous, and Supreme Court properly declined to suppress it (see People v. Rivers, 56 N.Y.2d 476, 479, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982];  People v. Layman, 284 A.D.2d 558, 559, 725 N.Y.S.2d 744 [2001], lv. denied 96 N.Y.2d 903, 730 N.Y.S.2d 801, 756 N.E.2d 89 [2001] ).   Also unavailing is defendant's assertion that the court erred in permitting a nonexamining physician to review defendant's medical records already in evidence and testify that the multiple fractures to the victim's face and his punctured lung were not caused by a seizure (see Matter of Meyer v. Board of Trustees of New York City Fire Dept., Art. 1-B Pension Fund, 90 N.Y.2d 139, 146, 659 N.Y.S.2d 215, 681 N.E.2d 382 [1997] ).

 Next, defendant was not denied his statutory right to testify before the grand jury.   When he presented this issue to Supreme Court, defendant claimed that he had sent written notification of his request to both the District Attorney and to the court.   Inasmuch as the District Attorney denied receipt and the court's search of its own records failed to verify defendant's claim, Supreme Court did not err in refusing to dismiss the indictment (see CPL 190.50[5][a];  People v. Brown, 300 A.D.2d 918, 919, 752 N.Y.S.2d 755 [2002], lv. denied 100 N.Y.2d 536, 763 N.Y.S.2d 2, 793 N.E.2d 416 [2003] ).

Finally, defendant argues that Supreme Court erred by failing to impose a shorter, three-year period of postrelease supervision because he was sentenced for this class D violent felony offense pursuant to Penal Law § 70.02.   Although the People concede this point, we cannot agree.  Penal Law § 70.45(2) provides, in pertinent part, as follows:  “The period of postrelease supervision for a determinate sentence shall be five years, except that such period shall be three years whenever a determinate sentence of imprisonment is imposed pursuant to section 70.02 of this article upon a conviction for a class D or E violent felony offense.”   Here, the record makes clear that defendant was sentenced as a second violent felony offender pursuant to Penal Law § 70.04 rather than Penal Law § 70.02.   Accordingly, he does not fall within the exception and Supreme Court properly imposed a five-year period of postrelease supervision (see People v. Chestnut, 18 A.D.3d 965, 795 N.Y.S.2d 366 [May 12, 2005]).

ORDERED that the judgment is affirmed.

ROSE, J.

PETERS, J.P., SPAIN, MUGGLIN and KANE, JJ., concur.