Opinion
08-17-2016
The PEOPLE, etc., respondent, v. Terry WINGATE, appellant.
Lynn W.L. Fahey, New York, N.Y. (Anna Kou of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Michael L. Akavan [Sullivan & Cromwell, LLP], of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Anna Kou of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Michael L. Akavan [Sullivan & Cromwell, LLP], of counsel), for respondent.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dwyer, J.), rendered September 16, 2014, convicting him of assault in the second degree and criminal contempt in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The Supreme Court improvidently exercised its discretion in allowing the People to introduce certain uncharged crime evidence (see People v. Alvino, 71 N.Y.2d 233, 241–242, 525 N.Y.S.2d 7, 519 N.E.2d 808 ; see also People v. Resek, 3 N.Y.3d 385, 390, 787 N.Y.S.2d 683, 821 N.E.2d 108 ; cf. People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 ; People v. Pham, 118 A.D.3d 1159, 1161, 987 N.Y.S.2d 687 ; People v. Ashman, 292 A.D.2d 458, 458–459, 738 N.Y.S.2d 874 ). However, contrary to the defendant's contention, under the circumstances of this case, the error did not deprive him of his due process right to a fair trial (see People v. Crimmins, 36 N.Y.2d 230, 238, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; see also People v. Smith, 131 A.D.3d 1270, 1273, 17 N.Y.S.3d 438 ).
The defendant's contention that the sentence imposed was improperly based on the crime of which he was acquitted is unpreserved for appellate review (see CPL 470.05[2] ; People v. Malcolm, 131 A.D.3d 1068, 1071, 16 N.Y.S.3d 306 ; People v. Morgan, 27 A.D.3d 579, 580, 810 N.Y.S.2d 369 ) and, in any event, without merit (see People v. Morgan, 27 A.D.3d at 580, 810 N.Y.S.2d 369 ; People v. Robinson, 250 A.D.2d 629, 629, 672 N.Y.S.2d 751 ; cf. People v. Grant, 94 A.D.3d 1139, 1141–1142, 942 N.Y.S.2d 223 ). Moreover, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).
CHAMBERS, J.P., DICKERSON, DUFFY and LaSALLE, JJ., concur.