| People v Agee |
| 2008 NY Slip Op 10387 [57 AD3d 1486] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Ronell S. Agee,Appellant. |
—[*1] Ronell S. Agee, defendant-appellant pro se. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.),rendered February 17, 2005. The judgment convicted defendant, upon a jury verdict, of assault in thefirst degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of assault in the firstdegree (Penal Law § 120.10 [3] [depraved indifference]), defendant contends that the evidenceis legally insufficient to support the conviction. Defendant failed to renew his motion for a trial order ofdismissal and has thus failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889[2006]; People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678[2001]). Defendant has further failed to preserve for our review his contention that the indictment mustbe dismissed because the evidence before the grand jury was legally insufficient to establish the crime ofdepraved indifference assault (see generallyPeople v Bryan, 50 AD3d 1049, 1050 [2008], lv denied 11 NY3d 786 [2008];People v Stone, 225 AD2d 1067, 1068 [1996], lv denied 88 NY2d 886 [1996]).Defendant's omnibus motion sought inspection of the grand jury minutes and dismissal of the indictmentonly on the general ground that the evidence before the grand jury was legally insufficient, anddefendant failed to set forth the specific grounds for dismissal now set forth on appeal, i.e., that theevidence was insufficient to establish either the element of recklessness or the element of depravedindifference (see People v Brown, 81 NY2d 798 [1993]).
We reject the further contention of defendant that he was denied the right to effectiveassistance of counsel based on the failure of defense counsel both to renew the motion for a trial orderof dismissal and to challenge the legal sufficiency of the grand jury evidence on the specific grounds nowraised on appeal. Rather, viewing defense counsel's representation as a whole, we conclude thatdefendant received effective assistance of counsel (see People v Stultz, 2 NY3d 277 [2004], rearg denied 3 NY3d[*2]702 [2004]; People v Baldi, 54 NY2d 137, 147 [1981]).Finally, we conclude that Supreme Court did not err in allowing the People to present testimonyconcerning defendant's prior bad acts. The record establishes that the court properly balanced theprobative value of the testimony with respect to defendant's motive and intent against its potential forprejudice (see People v Spotford, 85 NY2d 593, 597 [1995]; People v Ventimiglia,52 NY2d 350, 362 [1981]), and the record further establishes that the court properly admitted theevidence "as relevant background material" (People v Bedi, 299 AD2d 556, 556 [2002],lv denied 99 NY2d 612 [2003]). Present—Scudder, P.J., Martoche, Smith, Green andGorski, JJ.