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People v. Brewer

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 14, 2002
295 A.D.2d 1013 (N.Y. App. Div. 2002)

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]).


Summaries of

People v. Brewer

Appellate Division of the Supreme Court of New York, Fourth Department
Jun 14, 2002
295 A.D.2d 1013 (N.Y. App. Div. 2002)
Case details for

People v. Brewer

Case Details

Full title:PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF-RESPONDENT, v. SHANE R. BREWER…

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

Date published: Jun 14, 2002

Citations

295 A.D.2d 1013 (N.Y. App. Div. 2002)
743 N.Y.S.2d 920