Opinion
KA 01-01184
June 14, 2002.
Appeal from a judgment of Wyoming County Court (Dadd, J.), entered January 23, 2001, convicting defendant after a jury trial of, inter alia, assault in the first degree.
NORMAN P. EFFMAN, PUBLIC DEFENDER, ATTICA, FOR DEFENDANT-APPELLANT.
GERALD L. STOUT, DISTRICT ATTORNEY, WARSAW (THOMAS D. REH OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
The evidence, viewed in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621), is legally sufficient to support the conviction of assault in the first degree (Penal Law § 120.10) and endangering the welfare of a child (§ 260.10 [1]) based on the conduct of defendant that caused injury to his two-month-old daughter. Contrary to the contention of defendant, County Court properly admitted evidence that he was previously convicted of endangering the welfare of a child for engaging in conduct injurious to his son ( see People v. Caccese, 211 A.D.2d 976, 977-978, lv denied 86 N.Y.2d 780). That evidence was relevant to show the absence of accident or mistake ( see id.; see also People v. Henson, 33 N.Y.2d 63, 71-73; People v. Holloway, 185 A.D.2d 646, 647, lv denied 80 N.Y.2d 1027), and the probative value of that evidence outweighed its potential for prejudice ( see People v. Hudy, 73 N.Y.2d 40, 55; Holloway, 185 A.D.2d at 647). The contention of defendant that he was denied his rights to due process and a fair trial when the court dismissed the charges against the codefendant, raised for the first time in his motion to set aside the verdict ( see CPL 330.30), is not preserved for our review ( see 470.05 [2]; People v. Laraby, 92 N.Y.2d 932, 933). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]).