PRATCHETT, MICHAEL, PEOPLE v ( 2011 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    1401
    KA 10-00810
    PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    MICHAEL PRATCHETT, DEFENDANT-APPELLANT.
    THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
    COUNSEL), FOR RESPONDENT.
    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 assault in the second
    degree.
    It is hereby ORDERED that said appeal from the judgment insofar
    as it imposed a sentence of incarceration is unanimously dismissed and
    the judgment is otherwise affirmed.
    Memorandum: Defendant appeals from a judgment convicting him,
    upon a jury verdict, of assault in the second degree (Penal Law §
    120.05 [2]). Defendant “failed to preserve for our review his
    contention that the People failed to present legally sufficient
    evidence to disprove his justification defense [inasmuch as] he did
    not move for a trial order of dismissal on that ground” (People v
    Smalls, 70 AD3d 1328, 1330, lv denied 14 NY3d 844, 15 NY3d 778; see
    People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the
    elements of the crime as charged to the jury (see People v Danielson,
    9 NY3d 342, 349), we conclude that the verdict is not against the
    weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
    495).
    Defendant also failed to preserve for our review his contention
    that Supreme Court erred in permitting 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 defendant of a fair trial (see People v Aupperlee, 168 AD2d
    561, lv denied 77 NY2d 958). We reject the further contention of
    defendant that the court erred in refusing to suppress his statement
    to the police. “In concluding that defendant’s statement to the
    police was voluntarily made . . ., the suppression court was entitled
    to credit the testimony of [the] police witness[ ] that defendant was
    -2-                          1401
    KA 10-00810
    advised of his Miranda rights and knowingly, voluntarily and
    intelligently waived those rights” (People v Brooks, 26 AD3d 739, 740,
    lv denied 6 NY3d 846, 7 NY3d 810).
    We dismiss the appeal to the extent that defendant challenges the
    severity of the sentence inasmuch as he has completed serving his
    sentence and that part of the appeal therefore is moot (see People v
    Richardson, 85 AD3d 1556, amended on rearg 87 AD3d 1415; People v
    Griffin, 239 AD2d 936). We have reviewed defendant’s remaining
    contention and conclude that it is without merit.
    Entered:   December 30, 2011                   Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 10-00810

Filed Date: 12/30/2011

Precedential Status: Precedential

Modified Date: 10/8/2016