PEOPLE v. ALBIZU

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Hector ALBIZU, Defendant-Appellant.

Decided: May 16, 2002

BUCKLEY, J.P., SULLIVAN, LERNER, and FRIEDMAN, JJ. Olivier N. Farache, for Respondent. Jennifer B. Handler, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Ira Beal, J.), rendered February 15, 2000, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second violent felony offender, to a term of 5 1/212 years, unanimously affirmed.

 In this case where a critical issue was whether defendant struck the victim with a two-by-four, as claimed by the victim, or with his fist, as conceded by defendant, the court properly exercised its discretion in permitting the treating emergency room physician to testify that the injuries were caused by a flat, heavy object with at least one sharp edge, and that the object could have been a two-by-four.   This testimony concerning causation was helpful to the jury in a matter beyond the knowledge of a typical juror (see, People v. Miller, 91 N.Y.2d 372, 379, 670 N.Y.S.2d 978, 694 N.E.2d 61;  People v. Taylor, 75 N.Y.2d 277, 288, 552 N.Y.S.2d 883, 552 N.E.2d 131).

 Defendant's remaining contentions concerning the doctor's testimony are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that the cause of the victim's injuries was within the scope of the doctor's qualifications and training in emergency medicine;  that the testimony as to causation was not speculative or uncertain;  and that the doctor was properly permitted to testify about the victim's statements concerning the manner in which he was injured since these statements were relevant to diagnosis and treatment (see, People v. Randall, 227 A.D.2d 131, 641 N.Y.S.2d 639, lv. denied 88 N.Y.2d 940, 647 N.Y.S.2d 174, 670 N.E.2d 458).