PEOPLE v. FREYCINET (2007)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Eng, J.), rendered May 2, 2005, convicting him of manslaughter in the second degree, tampering with physical evidence, and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court properly determined that the non-opinion portion of the autopsy report was nontestimonial in nature (see Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177), and, thus, was admissible under the business records exception to the hearsay rule even though the doctor who had prepared the report was unavailable (see United States v. Feliz, 467 F.3d 227, 229;  People v. Durio, 7 Misc.3d 729, 734-736, 794 N.Y.S.2d 863;  see also People v. Grogan, 28 A.D.3d 579, 816 N.Y.S.2d 93).

 The defendant also contends that the prosecution failed to disprove his defense of justification beyond a reasonable doubt because his testimony that he accidentally stabbed his girlfriend, who had reached for the knife first, as they were struggling over it, was unrebutted.   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant, who was considerably larger than the victim, could not reasonably have believed that the victim was about to use deadly physical force against him because she was lying beneath him on her back and was unarmed when he stabbed her in the side of her face with the knife (see People v. Jones, 3 N.Y.3d 491, 496, 788 N.Y.S.2d 651, 821 N.E.2d 955;  People v. Chung, 39 A.D.3d 558, 835 N.Y.S.2d 223;  People v. Henegan, 150 A.D.2d 606, 541 N.Y.S.2d 476;  see also People v. Krebs, 11 A.D.3d 713, 784 N.Y.S.2d 564;  Penal Law § 35.15[2][a] ).   Moreover, upon the exercise of our factual review power (see CPL 470.15[5] ), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).