| People v Freece |
| 2007 NY Slip Op 10306 [46 AD3d 1428] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Donovan A.Freece, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), renderedOctober 1, 2004. The judgment convicted defendant, upon a jury verdict, of criminal contempt inthe first degree and aggravated harassment in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofcriminal contempt in the first degree (Penal Law § 215.51 [b] [v]) and aggravatedharassment in the second degree (§ 240.30 [1] [a]). We reject defendant's contention thatCounty Court erred in its Molineux ruling. Evidence of defendant's prior bad actsinvolving the victim was properly admitted because it was relevant with respect to the issues ofmotive and intent (see People vMelendez, 8 AD3d 680 [2004], lv denied 3 NY3d 741 [2004]; People v Mathias, 7 AD3d 824,825-826 [2004]; People v Wright, 288 AD2d 409 [2001], lv denied 97 NY2d 763[2002]). The evidence demonstrated elements of aggravated harassment in the second degree,i.e., that defendant intended to threaten the victim and to cause her to be alarmed (seePenal Law § 240.30 [1] [a]). The court properly concluded that the probative value of thatevidence outweighed its potential for prejudice and issued the appropriate limiting instruction tothe jury (see generally People v Alvino, 71 NY2d 233, 242 [1987]). We reject the furthercontention of defendant that he was denied his right to be present at a material stage of the trial.Even assuming, arguendo, that defendant was absent during a sidebar conference, we concludethat the conference in question involved a purely legal discussion and "neither implicateddefendant's peculiar factual knowledge nor otherwise presented the potential for his meaningfulparticipation" (People v Rodriguez, 85 NY2d 586, 591 [1995]; see People v Fabricio, 3 NY3d402, 406 [2004]; People vRobinson, 28 AD3d 1126, 1128 [2006], lv denied 7 NY3d 794 [2006];People v Borzouye, 265 AD2d 419 [1999], lv denied 94 NY2d 860 [1999]).Present—Scudder, P.J., Smith, Centra, Lunn and Peradotto, JJ.