People v. Luke

8 A.D.3d 203, 779 N.Y.S.2d 194

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 2004
• Status: Published

Opinion

Judgments, Supreme Court, Bronx County (Megan Tallmer, J.), rendered October 21, 2002, convicting defendant, after a jury trial, of assault in the second degree, and convicting him, upon his plea of guilty, of promoting prison contraband in the first degree, and sentencing him to concurrent terms of 5 years and 1 to 3 years, unanimously affirmed.

The court properly admitted the testifying victim’s statement to a social worker as an excited utterance (see People v Johnson, 1 NY3d 302 [2003]). The evidence established that the distraught victim, described by a witness as hysterical, was still under the stress of the brutal beating that defendant had inflicted a short time before.

The court properly refused to submit assault in the third degree as a lesser included offense of assault in the second degree. Given the nature of the victim’s injuries, as well as fact that her testimony constituted an integrated whole (see People v Negron, 91 NY2d 788 [1998]), there was no reasonable view of the evidence that defendant assaulted the victim with just his hands rather than with a dangerous instrument. Concur—Tom, J.P., Andrias, Williams, Marlow and Gonzalez, JJ.