Opinion
2011-12-30
The PEOPLE of the State of New York, Respondent, v. Michael PRATCHETT, Defendant–Appellant.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered November 30, 2009. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for defendant–appellant. Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered November 30, 2009. The judgment convicted defendant, upon a jury verdict, of assault in the second degree.The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for defendant–appellant. Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of Counsel), for respondent.
It is hereby ORDERED that said appeal from the judgment insofar as it imposed a sentence of incarceration is unanimously dismissed and the judgment is otherwise affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, of assault in the second degree (Penal Law § 120.05[2] ). Defendant “failed to preserve for our review his contention that the People failed to present legally sufficient evidence to disprove his justification defense [inasmuch as] he did not move for a trial order of dismissal on that ground” ( People v. Smalls, 70 A.D.3d 1328, 1330, 894 N.Y.S.2d 791, lv. denied 14 N.Y.3d 844, 901 N.Y.S.2d 151, 927 N.E.2d 572, 15 N.Y.3d 778, 907 N.Y.S.2d 467, 933 N.E.2d 1060; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). Viewing the evidence in light of the elements of the crime as charged to the jury ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
Defendant also failed to preserve for our review his contention that Supreme Court erred in permitting the victim to testify in his military uniform ( see CPL 470.05[2] ). In any event, the fact that the victim was wearing a military uniform while testifying did not deprive defendant of a fair trial ( see People v. Aupperlee, 168 A.D.2d 561, 564 N.Y.S.2d 239, lv. denied 77 N.Y.2d 958, 570 N.Y.S.2d 491, 573 N.E.2d 579). We reject the further contention of defendant that the court erred in refusing to suppress his statement to the police. “In concluding that defendant's statement to the police was voluntarily made ..., the suppression court was entitled to credit the testimony of [the] police witness[ ] that defendant was advised of his Miranda rights and knowingly, voluntarily and intelligently waived those rights” ( People v. Brooks, 26 A.D.3d 739, 740, 808 N.Y.S.2d 517, lv. denied 6 N.Y.3d 846, 816 N.Y.S.2d 752, 849 N.E.2d 975, 7 N.Y.3d 810, 822 N.Y.S.2d 485, 855 N.E.2d 801).
We dismiss the appeal to the extent that defendant challenges the severity of the sentence inasmuch as he has completed serving his sentence and that part of the appeal therefore is moot ( see People v. Richardson, 85 A.D.3d 1556, 924 N.Y.S.2d 876, amended on rearg 87 A.D.3d 1415, 930 N.Y.S.2d 504; People v. Griffin, 239 A.D.2d 936, 659 N.Y.S.2d 613). We have reviewed defendant's remaining contention and conclude that it is without merit.