Decided and Entered: June 9, 2005 15154 ___________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v LUIS ROMAN, Appellant. ______________________ Calendar Date: May 5, 2005 Before: Peters, J.P., Spain, Mugglin, Rose and Kane, JJ. _____ Michael C. Ross, Bloomingburg, for appellant. P. David Soares, District Attorney, Albany (William J. Conboy III of counsel), for respondent. _____ Rose, J. 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 AD2d 873, 873 [2003]; People v Miller, 290 AD2d 814, 815 [2002], lv denied 98 NY2d 678 [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 NY2d 490, 495 [1987]; People v Richard, 232 AD2d 872, 873 [1996], lv denied 89 NY2d 1099 [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 NY2d 476, 479 [1982]; People v Layman, 284 AD2d 558, 559 [2001], lv denied 96 NY2d 903 [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 NY2d 139, 146 [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 on this basis (see CPL 190.50 [5] [a]; People v Brown, 300 AD2d 918, 919 [2002], lv denied 100 NY2d 536 [2003]). We do find, however, that Supreme Court improperly imposed a five-year period of postrelease supervision for this class D violent felony, a point conceded by the People. Thus, we reduce the period of postreleasae supervision to three years (see Penal Law § 70.45 [2] [a]). Peters, J.P., Spain, Mugglin and Kane, JJ., concur. ORDERED that the judgment is modified, on the law, by reducing the period of postrelease supervision to three years, and, as so modified, affirmed.
