People v. Mack

Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant was convicted following a jury trial of two counts of aggravated harassment of an employee by an inmate (Penal Law § 240.32) arising out of his throwing urine and/or feces on two correction officers. He was sentenced to consecutive terms of imprisonment of 21h to 5 years and fined $5,000 on each count. Upon our review of the record, we conclude that the evidence is legally sufficient to support the conviction (see, People v Taylor, 94 NY2d 910 ; People v Bleakley, 69 NY2d 490 , 495).

Defendant’s contention that the People’s expert witness was not properly qualified as an expert is not preserved for our review (see, CPL 470.05 [2]; People v Stabell, 270 AD2d 894 ; People v Highsmith, 254 AD2d 768 , 769, lv denied 92 NY2d 983 , 1033). In any event, there is no merit to that contention. The record establishes that the witness was qualified to provide opinion testimony (see, People v Stabell, supra).

Defendant also failed to preserve for our review his contention that County Court’s charge on intent impermissibly shifted the burden of proof to defendant (see, People v McKenzie, 67 NY2d 695 , 697; People v Thomas, 50 NY2d 467 ). In any event, the court properly instructed the jury that the presumption was permissive and did not shift the burden of proof to defendant (see, People v McKenzie, supra, at 696-697 ).

Because the two offenses were committed through a single act, the imposition of consecutive sentences of imprisonment and two fines was improper (see, Penal Law § 70.25 [2]; § 80.15). Thus, we modify the judgment by providing that the sentences run concurrently and by vacating the fine imposed on the second count of the indictment (see, People v Taylor, 197 AD2d 858 , 859). (Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Aggravated Harassment of Employee by Inmate.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.