| People v Barbato |
| 2011 NY Slip Op 02408 [82 AD3d 1112] |
| March 22, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v PhilipBarbato, Appellant. |
—[*1] William V. Grady, District Attorney, Poughkeepsie, N.Y. (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Hayes, J.),rendered January 30, 2009, convicting him of assault in the second degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
At trial, the complainant testified that the defendant choked her until her body "went limp,""everything went black," and she urinated on herself. Prior to the complainant's testimony, thePeople were permitted, over the defendant's objection, to introduce evidence that he hadpreviously strangled two women in 1985 and 1988, respectively. The County Court instructed thejury that it could consider this evidence in the context of determining whether the defendantintended to cause serious physical injury to the complainant. Following the trial, the defendantwas convicted of assault in the second degree. We reverse and order a new trial.
As the defendant correctly contends, the County Court erred in permitting the introduction ofevidence of his prior crimes. "Although intent is one of the elements of a crime for which priormisconduct evidence may be admitted, evidence of prior misconduct to prove intent isunnecessary where intent may be easily inferred from the commission of the act itself"(People v Vargas, 88 NY2d 856, 858 [1996]; see People v Alvino, 71 NY2d 233,242 [1987]). Here, the defendant's intent could be easily inferred from the commission of the actitself (see People v McKinney, 24 NY2d 180, 185 [1969]; People v Sparer, 293AD2d 630 [2002]). Moreover, the defendant did not contest the element of intent before the jurybut, rather, denied that he committed the assault (see People v McKinney, 24 NY2d at185). Therefore, the probative value of the evidence of the defendant's prior crimes wasoutweighed by its prejudicial effect (see People v Rodriguez, 274 AD2d 593, 594[2000]). Finally, under the circumstances, the County Court's limiting instructions wereinsufficient to cure the prejudice caused by the erroneous admission of this evidence (seePeople v Wilkinson, 71 AD3d 249, 257 [2010]).
Accordingly, since the error was not harmless, the judgment of conviction must be reversedand a new trial ordered. Mastro, J.P., Skelos, Leventhal and Roman, JJ., concur.