Opinion
KA 01-01242.
November 21, 2003.
Appeal from a judgment of Supreme Court, Erie County (Forma, J.), entered May 24, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Michael C. Walsh of Counsel), for Defendant-Appellant.
Dwight Dilbert, Defendant-Appellant Pro Se.
Frank J. Clark, District Attorney, Buffalo (J. Michael Marion of Counsel), for Plaintiff-Respondent.
Before: Present: Green, J.P., Wisner, Hurlbutt, Kehoe, and Hayes, JJ.
MEMORANDUM AND ORDER
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 after a jury trial of murder in the second degree (Penal Law § 125.25) and aggravated criminal contempt (§ 215.52). We reject the contention of defendant that he was denied a fair trial by the admission in evidence of a threatening letter written by defendant to the victim and the testimony of a coworker of the victim regarding a conversation she had with defendant in which he threatened to kill the victim if he had to go to jail because she reported a prior incident to police. Supreme Court properly admitted that evidence because it was probative of defendant's motive and intent to kill the victim ( see People v. Zarif, 290 A.D.2d 401, 402, lv denied 98 N.Y.2d 683; People v. Kanner, 272 A.D.2d 866, 867, lv denied 95 N.Y.2d 867; People v. Rolf, 185 A.D.2d 656, lv denied 80 N.Y.2d 933). The verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495), and the sentence is neither unduly harsh nor severe.
Contrary to the contention of defendant raised in his pro se supplemental brief, he received effective assistance of counsel ( see People v. Baldi, 54 N.Y.2d 137, 147). Defendant failed to identify any conduct of his attorney that rendered her assistance ineffective ( see People v. Ivey, 272 A.D.2d 883, lv denied 96 N.Y.2d 902). The further contention of defendant raised in his pro se supplemental brief concerning the conduct of the prosecutor before the grand jury is not reviewable on appeal because the grand jury minutes are not included in the record on appeal ( see People v. Sumpter, 185 A.D.2d 629, 630, lv denied 80 N.Y.2d 1030, 81 N.Y.2d 848; see also Matter of Shellito D., 226 A.D.2d 1075, 1075-1076). The remaining contentions raised in defendant's pro se supplemental brief are not preserved for our review ( see CPL 470.05) and, in any event, are without merit.