| People v Pratchett |
| 2011 NY Slip Op 09737 [90 AD3d 1678] |
| December 30, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MichaelPratchett, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered November 30, 2009. The judgment convicted defendant, upon a jury verdict, of assaultin the second degree.
It is hereby ordered that said appeal from the judgment insofar as it imposed a sentence ofincarceration is unanimously dismissed and the judgment is otherwise affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a jury verdict, ofassault in the second degree (Penal Law § 120.05 [2]). Defendant "failed to preserve forour review his contention that the People failed to present legally sufficient evidence to disprovehis justification defense [inasmuch as] he did not move for a trial order of dismissal on thatground" (People v Smalls, 70 AD3d1328, 1330 [2010], lv denied 14 NY3d 844 [2010], reconsideration denied15 NY3d 778 [2010]; see People v Gray, 86 NY2d 10, 19 [1995]). Viewing the evidencein light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally People v Bleakley,69 NY2d 490, 495 [1987]).
Defendant also failed to preserve for our review his contention that Supreme Court erred inpermitting the victim to testify in his military uniform (see CPL 470.05 [2]). In any event,the fact that the victim was wearing a military uniform while testifying did not deprive defendantof a fair trial (see People v Aupperlee, 168 AD2d 561 [1990], lv denied 77 NY2d958 [1991]). We reject the further contention of defendant that the court erred in refusing tosuppress his statement to the police. "In concluding that defendant's statement to the police wasvoluntarily made . . . , the suppression court was entitled to credit the testimony of[the] police witness[ ] that defendant was advised of his Miranda rights and knowingly,voluntarily and intelligently waived those rights" (People v Brooks, 26 AD3d 739, 740 [2006], lv denied 6NY3d 846 [2006], 7 NY3d 810 [2006]).
We dismiss the appeal to the extent that defendant challenges the severity of the sentenceinasmuch as he has completed serving his sentence and that part of the appeal therefore is moot(see People v Richardson, 85 AD3d1556 [2011], amended on rearg 87 AD3d 1415 [2011]; People v Griffin, 239AD2d 936 [1997]). We have reviewed defendant's remaining contention and conclude that it iswithout merit. Present—Smith, J.P., Fahey, Carni, Sconiers and Gorski, JJ.