People v. Brewer

—Appeal from a judgment of Wyoming County Court (Dadd, J.), entered January 23, 2001, convicting defendant after a jury trial of, inter alia, assault in the first degree.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 , 621), is legally sufficient to support the conviction of assault in the first degree (Penal Law § 120.10 [3]) and endangering the welfare of a child (§ 260.10 [1]) based on the conduct of defendant that caused injury to his two-month-old daughter. Contrary to the contention of defendant, County Court properly admitted evidence that he was previously convicted of endangering the welfare of a child for engaging in conduct injurious to his son (see People v Caccese, 211 AD2d 976 , 977-978, lv denied 86 NY2d 780 ). That evidence was relevant to show the absence of accident or mistake (see id.; see also People v Henson, 33 NY2d 63 , 71-73; People v Holloway, 185 AD2d 646 , 647, lv denied 80 NY2d 1027 ), and the probative value of that evidence outweighed its potential for prejudice (see People v Hudy, 73 NY2d 40 , 55; Holloway, 185 AD2d at 647 ). The contention of defendant that he was denied his rights to due process and a fair trial when the court dismissed the charges against the codefendant, raised for the first time in his motion to set aside the verdict (see CPL 330.30 [1]), is not preserved for our review