Opinion
294 KA 14-01615.
03-24-2017
The PEOPLE of the State of New York, Respondent, v. Freddie JACKSON, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Sara A. Goldfarb of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Sara A. Goldfarb of Counsel), for Defendant–Appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, and SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), assault in the second degree (§ 120.05[2] ), and criminal contempt in the second degree (§ 215.50[3] ). We reject defendant's contention that County Court improperly allowed expert testimony on domestic violence. Such testimony " ‘may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand’ " (People v. Williams, 20 N.Y.3d 579, 584, 964 N.Y.S.2d 483, 987 N.E.2d 260 ; see People v. Woodworth, 111 A.D.3d 1368, 1369, 976 N.Y.S.2d 631, lv. denied 23 N.Y.3d 969, 988 N.Y.S.2d 577, 11 N.E.3d 727 ). Here, the testimony was relevant in light of the victim's testimony regarding her conduct immediately after the assault and with respect to her communication with defendant prior to the first scheduled trial (see Woodworth, 111 A.D.3d at 1369, 976 N.Y.S.2d 631 ; People v. Hryckewicz, 221 A.D.2d 990, 990–991, 634 N.Y.S.2d 297, lv. denied 88 N.Y.2d 849, 644 N.Y.S.2d 695, 667 N.E.2d 345 ). In any event, any error in allowing such testimony is harmless. The evidence of guilt is overwhelming, and there is no significant probability that the absence of the error would have led to an acquittal (see Williams, 20 N.Y.3d at 585, 964 N.Y.S.2d 483, 987 N.E.2d 260 ; People v. Eckhardt, 305 A.D.2d 860, 864, 761 N.Y.S.2d 338, lv. denied 100 N.Y.2d 620, 767 N.Y.S.2d 403, 799 N.E.2d 626 ; see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).
Defendant failed to preserve for our review his contention that prosecutorial misconduct deprived him of a fair trial (see People v. Machado, 144 A.D.3d 1633, 1635, 42 N.Y.S.3d 519 ; People v. Love, 134 A.D.3d 1569, 1570, 23 N.Y.S.3d 511, lv. denied 27 N.Y.3d 967, 36 N.Y.S.3d 628, 56 N.E.3d 908 ) and we conclude that defendant's contention is without merit in any event. We reject defendant's further contention that he was penalized for exercising his right to a trial (see People v. Pope, 141 A.D.3d 1111, 1112, 33 N.Y.S.3d 812 ; see generally People v. Martinez, 26 N.Y.3d 196, 200, 21 N.Y.S.3d 196, 42 N.E.3d 693 ). Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.