Opinion
July 14, 1992
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Callahan, J.P., Boomer, Green, Fallon and Davis, JJ.
Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting her of depraved indifference murder (see, Penal Law § 125.25). The charge arose from the beating death of her 23-month-old son. Defendant contends that the trial court erred by permitting the People, on their direct case, to introduce evidence of defendant's prior uncharged abusive conduct toward her son without conducting a Ventimiglia hearing (see, People v Ventimiglia, 52 N.Y.2d 350). Defendant also argues that the evidence was not relevant to any issue in the case and that the trial court failed to weigh the probative value of that evidence against the potential for undue prejudice to defendant (People v Hudy, 73 N.Y.2d 40, 55; People v. Molineux, 168 N.Y. 264, 293). We conclude that the court erred in failing to conduct a Ventimiglia hearing (see, People v. Ventimiglia, supra; People v. Charleston, 175 A.D.2d 602, lv denied 78 N.Y.2d 1126). In light of the overwhelming proof of defendant's guilt, however, that error was harmless (see, People v. Crimmins, 36 N.Y.2d 230; People v. Myers, 185 A.D.2d 695 [decided herewith]; cf., People v Kocyla, 167 A.D.2d 938, 939). Furthermore, the admission of the proffered evidence that defendant engaged in abusive conduct toward her son prior to his death was proper because it was material and relevant on the issues of whether defendant's actions evinced a depraved indifference to human life, whether her son's death was accidental (see, People v. Rolf, 185 A.D.2d 656 [decided herewith]), and the identity of the perpetrator of the crime (see, People v. Beam, 57 N.Y.2d 241, 251; People v Allweiss, 48 N.Y.2d 40, 47). "Th[ose] exception[s are] especially applicable in cases where the crime charged has occurred in the privacy of the home and the facts are not easily ascertainable" (People v. McNeeley, 77 A.D.2d 205, 211; see also, People v Henson, 33 N.Y.2d 63, 72). Additionally, in our view, the probative value of that evidence exceeded its potential for prejudice to defendant (see, People v. Hudy, 73 N.Y.2d 40, 55, supra).
Viewing the evidence in the light most favorable to the People (see, People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932; People v. Contes, 60 N.Y.2d 620), we conclude that defendant's conviction of second degree murder is supported by legally sufficient evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). Furthermore, we reject defendant's contention that the verdict is against the weight of the evidence (see, People v Bleakley, supra, at 495).
Upon our review of the record, we conclude that the sentence imposed was unduly severe and should be modified (see, People v Delgado, 80 N.Y.2d 780; People v. Farrar, 52 N.Y.2d 302, 305; People v. Suitte, 90 A.D.2d 80, 86-87; People v. Notey, 72 A.D.2d 279). Therefore, as a matter of discretion in the interest of justice (see, CPL 470.15 [b]), we modify the sentence by reducing it from 25 years to life to 15 years to life (see, Penal Law § 70.00 [a]; [3] [a]).
We have reviewed defendant's remaining contentions and conclude that none requires reversal.