| People v Seaton |
| 2017 NY Slip Op 01103 [147 AD3d 1531] |
| February 10, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Kyle V.Seaton, Appellant. |
Betzjitomir Law Office, Bath (Susan Betzjitomir of counsel), for defendant-appellant.
Brooks T. Baker, District Attorney, Bath (John C. Tunney of counsel), for respondent.
Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), renderedDecember 22, 2014. The judgment convicted defendant, upon a jury verdict, of assault in thesecond degree (two counts).
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 oftwo counts of assault in the second degree (Penal Law § 120.05 [1], [2]), arisingfrom kicking the victim in the head and face with steel-toed boots. The victim sustained atraumatic brain injury and did not remember the details of the incident until after he was releasedfrom the hospital. According to the victim, who was 15 years old at the time of the offense, heterminated his long-term friendship with defendant two to three months before this incident afterdefendant was angry that the victim won a game of Monopoly. Contrary to defendant'scontention, County Court did not abuse its discretion in admitting Molineux evidencethat, when the game concluded, defendant sprayed an aerosol can of body spray in the victim'sdirection and then lit the spray, thereby burning the victim's arm. The People argued that theevidence was relevant to, inter alia, defendant's motive to harm the victim after he terminatedtheir friendship. In conducting the requisite two-part inquiry to determine whether to permitevidence of alleged prior bad acts, the court must determine whether "the proponent of theevidence [identified] some material issue, other than the defendant's criminal propensity, towhich the evidence is directly relevant" and, if that showing is made, the court must then "weighthe evidence's probative value against its potential for undue prejudice to the defendant" (People v Cass, 18 NY3d 553, 560[2012]). Here, although we note that "the court . . . could have better recited itsdiscretionary balancing of the probity of such evidence against its potential for prejudice. . . , we conclude that, viewing the record in its entirety, the court conducted therequisite balancing test" (People vLawrence, 141 AD3d 1079, 1081 [2016], lv denied 28 NY3d 1029 [2016][internal quotation marks omitted]). In any event, the court instructed the jury that the evidencewas to be considered solely with respect to the issue of defendant's motive, and "not for thepurpose of proving that he had a propensity or predisposition to commit the crimes charged,"thereby minimizing any prejudicial effect (see id.).
We reject defendant's further contention that he was denied effective assistance of counsel.Defendant failed to demonstrate the absence of a strategic or other legitimate explanation fordefense counsel's failure to request DNA testing of defendant's boots, to conduct a furthercross-examination of a treating physician with respect to the reliability of memory after atraumatic incident, or to conduct a further cross-examination of the prosecution's rebuttal witness(see People v Caban, 5 NY3d143, 154 [2005]). Defendant's contention that counsel failed to call additional alibi witnessesinvolves matters that are outside the record on appeal and must therefore be raised by way of amotion pursuant to CPL 440.10 (seePeople v Kaminski, 109 AD3d 1186, 1186 [2013], lv denied 22 NY3d 1088[2014]). Contrary to defendant's contention, defense counsel was not ineffective for failing tohave defendant testify inasmuch as it is well settled that "[t]he fundamental decision whether totestify at trial is reserved to the defendant, not defense counsel" (People v Cosby, 82 AD3d 63, 66[2011], lv denied 16 NY3d 857 [2011]). Finally, although certain comments on theevidence by defense counsel on summation could be construed as unfavorable to defendant,counsel nevertheless emphasized alleged shortcomings in the investigation of the crime,challenged the victim's credibility with respect to whether he remembered the incident, andpointed out inconsistencies in the testimony of prosecution witnesses. We conclude that any errorwith respect to those comments was not "sufficiently egregious and prejudicial as to denydefendant a fair trial" (People vReleford, 126 AD3d 1407, 1407 [2015], lv denied 25 NY3d 1170 [2015]).Present—Peradotto, J.P., Carni, Lindley, Curran and Scudder, JJ.