| People v Milczakowskyj |
| 2010 NY Slip Op 03998 [73 AD3d 1453] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael G.Milczakowskyj, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), rendered June3, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degreeand harassment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, ofassault in the second degree (Penal Law § 120.05 [1]) and harassment in the second degree(§ 240.26 [1]) resulting from two incidents of domestic violence between defendant andhis girlfriend. Defendant was convicted of assault based on the first incident, during which hepunched the victim in her left breast and broke two of her ribs. According to the victim, thesecond incident occurred approximately seven weeks later, when defendant threw her to theground and landed on top of her, further injuring her ribs. The victim also alleged that defendantheld her against her will at gunpoint and that, the following evening, he threatened to shoot herwith a rifle if she left the house. Defendant was convicted of harassment as a result of the secondincident but acquitted of all other related charges, including felony assault and unlawfulimprisonment.
Defendant failed to preserve for our review his contention that the evidence of seriousphysical injury is legally insufficient to support the assault conviction inasmuch as he made onlya general motion for a trial order of dismissal that was not directed at that ground (see Peoplev Gray, 86 NY2d 10, 19 [1995]). Defendant likewise failed to preserve for our review hisfurther contention that County Court erred in allowing an expert to testify concerning the effectsof post-traumatic stress disorder on battered women (see CPL 470.05 [2]). In any event,"[t]hat testimony was relevant to explain behavior on the part of the [victim] that might seemunusual to a lay jury unfamiliar with the patterns of response exhibited by a person who has beenphysically . . . abused over a period of time" (People v Nelson, 57 AD3d 1441, 1442 [2008] [internal quotationmarks omitted]; see generally People v Hodgins, 277 AD2d 911 [2000], lvdenied 96 NY2d 784 [2001]).
Contrary to defendant's further contention, the court properly granted the motion of thePeople to amend the indictment to reflect the correct date of the first incident. Defendant wasprovided with ample notice of the proposed amendment, and the amendment did not change the[*2]theory of the prosecution (see People v Hale [appealNo. 1], 236 AD2d 807 [1997], lv denied 89 NY2d 1036 [1997]; see generally People v Dudley, 28AD3d 1182 [2006], lv denied 7 NY3d 788 [2006]). Defendant failed to preserve forour review the majority of his present objections to alleged instances of prosecutorial misconduct(see CPL 470.05 [2]). In any event, even assuming, arguendo, that some of the allegedinstances were improper, we conclude that none was so egregious as to deny defendant a fairtrial (see People v Hightower, 286 AD2d 913, 915 [2001], lv denied 97 NY2d656 [2001]). The sentence is not unduly harsh or severe. We have reviewed defendant'sremaining contentions and conclude that none requires reversal. Present—Centra, J.P.,Carni, Lindley, Green and Gorski, JJ.