From Casetext: Smarter Legal Research

People v. Call

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 18, 1992
187 A.D.2d 937 (N.Y. App. Div. 1992)

Opinion

November 18, 1992

Appeal from the Supreme Court, Erie County, Wolfgang, J.

Present — Callahan, J.P., Green, Pine, Boehm and Doerr, JJ.


Judgment unanimously affirmed. Memorandum: Defendant was convicted of criminally negligent homicide, as a lesser included offense of the crime of murder in the second degree, and assault in the third degree. We have weighed the probative strength of the conflicting testimony at trial and the relative strength of the conflicting inferences that may be drawn from that testimony (see, People v Bleakley, 69 N.Y.2d 490, 495) and conclude that the conviction for criminally negligent homicide was not against the weight of the evidence.

Because defendant was charged with depraved indifference murder (Penal Law § 125.25), neither his intent nor his motive at the time of the crime was a material issue at trial. Thus, the trial court erred in allowing evidence of prior acts of violence directed by defendant at his wife. That error, however, was harmless (see, People v Crimmins, 36 N.Y.2d 230, 241; see also, People v Rivera, 132 A.D.2d 956). The proof that defendant's assault upon his pregnant wife led to the death of his prematurely born son was overwhelming, and there is no probability that the jury's verdict was influenced by the improperly admitted evidence.

We have examined defendant's other contentions and find them to be without merit.


Summaries of

People v. Call

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 18, 1992
187 A.D.2d 937 (N.Y. App. Div. 1992)
Case details for

People v. Call

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NELSON CALL, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 18, 1992

Citations

187 A.D.2d 937 (N.Y. App. Div. 1992)
591 N.Y.S.2d 114

Citing Cases

Diaz v. Mantello

n in the course of a heated argument, would give rise to an affirmative defense. See People v. Roe, 74 N.Y.2d…