People v. Guidice
| Decision Date | 13 April 1993 |
| Citation | 192 A.D.2d 383,595 N.Y.S.2d 481 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Anthony GUIDICE, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. David GUIDICE, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. James SMITH, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and MILONAS, KASSAL and RUBIN, JJ.
Judgments, Supreme Court, New York County (Thomas Galligan, J.), rendered March 25, 1992, convicting each defendant, after a jury trial, of assault in the second degree, and sentencing Anthony Guidice and James Smith to terms of 2 to 6 years, and David Guidice, as a second felony offender, to a term of 2 1/2 to 5 years, unanimously affirmed.
After David Guidice got into a physical dispute with a co-worker at a construction site, his father, Anthony Guidice, arranged for co-defendant Smith--Anthony Guidice's nephew--and an unapprehended man to exact physical retribution. The assault was arranged by Anthony Guidice from his New York County office. Several of these telephone calls were recorded pursuant to electronic surveillance in an unrelated matter. David Guidice, James Smith, and the unapprehended man arrived at the work site. The unapprehended man beat the victim with a baseball bat.
Defendants' challenge to the legal sufficiency of the evidence that the victim had not suffered physical impairment or substantial pain is without merit. This essentially is a jury question (People v. Rojas, 61 N.Y.2d 726, 727, 472 N.Y.S.2d 615, 460 N.E.2d 1100). The victim's testimony that he initially believed his arm was broken, that he suffered bruising, swelling, and prolonged pain, that he could not raise the arm, and temporarily was disabled from performing his usual jobs, established the existence of both physical impairment and substantial pain, notwithstanding the lack of medical evidence (People v. Pope, 174 A.D.2d 319, 571 N.Y.S.2d 205, lv. denied,78 N.Y.2d 1079, 577 N.Y.S.2d 243, 583 N.E.2d 955; People v. Tejeda, 165 A.D.2d 683, 560 N.Y.S.2d 142, affd, 78 N.Y.2d 936, 573 N.Y.S.2d 633, 578 N.E.2d 431).
The introduction of direct evidence against Anthony Guidice defeats his claim that a circumstantial evidence instruction was required (see, People v. Rumble, 45 N.Y.2d 879, 410 N.Y.S.2d 806, 383 N.E.2d 108). Nor was there a confrontation clause violation. We find that the redacted line sheets herein, used for the admissibility of the wire tap tapes, did not violate the hearsay rule because they qualified as business records under CPLR 4518. The statements of each declarant were introduced only against that declarant, with proper limiting instructions. To the extent that these statements were introduced as...
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People v. Guidice
...documents that are prepared for the sole purpose of litigation." The Appellate Division affirmed the judgments of conviction, 192 A.D.2d 383, 595 N.Y.S.2d 481, and we now Defendants' contention that the electronic surveillance tapes were admitted without a proper evidentiary foundation must......