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People v. Burkett

12 A.D.3d 1196 Court N.Y. App. Div. Decision date 2004-11-19 English

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p. 1196
The People of the State of New York, Respondent, v Gary Burkett, Appellant.
[784 NYS2d 433]

Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, J.), rendered November 19, 2002. The judgment convicted defendant, after a nonjury trial, of aggravated harassment of an employee by an inmate.

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

Memorandum: Defendant appeals from a judgment convicting him following a bench trial of aggravated harassment of an employee by an inmate (Penal Law § 240.32). Defendant’s challenge to the prosecutor’s obtaining of a sealed indictment is unpreserved for our review (see generally CPL 210.25, 210.35, 210.45) and is without merit in any event (see generally 100.05, 210.05, 210.10 [3]). County Court did not abuse its discretion in denying defendant’s motion to invoke the procedures of CPL article 730 (see People v Laraby, 4 AD3d 749 , 750 [2004], lv denied 2 NY3d 802 [2004]; People v Blackwell, 278 AD2d 804 [2000], lv denied 96 NY2d 781 [2001]). In addition, the court did not err in admitting evidence of an uncharged crime or bad act committed by defendant. The evidence in question was directly probative of a material issue in the case, i.e., the criminal intent of defendant and the absence of any accident or mistake on his part (see People v Hudy, 73 NY2d 40 , 54-55 [1988]; People v Ventimiglia, 52 NY2d 350 , 359 [1981]). There

p. 1197
was a strong need for the evidence to resolve the factual dispute concerning defendant’s intent (see People v Alvino, 71 NY2d 233 , 242-243 [1987]; cf. People v Lewis, 69 NY2d 321 , 327-328 [1987]), and the probative value of the evidence outweighed its potential prejudicial effect (see Hudy, 73 NY2d at 55 ; Ventimiglia, 52 NY2d at 359-360 ; People v Allweiss, 48 NY2d 40 , 47 [1979]). Contrary to defendant’s further contentions, the evidence is legally sufficient to support the conviction (see People v Pysadee, 1 AD3d 959 , 960 [2003], lv denied 2 NY3d 744 [2004]; People v Moore, 308 AD2d 599 , 600 [2003], lv denied 1 NY3d 576 [2003]; People v Ortiz, 305 AD2d 979 [2003], lv denied 100 NY2d 564 [2003]), and the verdict is not against the weight of the evidence (see Moore, 308 AD2d at 600 ; People v Stokes, 290 AD2d 71 , 73-74 [2002], lv denied 97 NY2d 762 [2002], cert denied 537 US 859 [2002]; see generally People v Bleakley, 69 NY2d 490 , 495 [1987]). Finally, upon our review of the record, we conclude that “the evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation” to defendant (People v Baldi, 54 NY2d 137 , 147 [1981]). Present—Pigott, Jr., P.J., Pine, Scudder, Kehoe and Lawton, JJ.

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