        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

198
KA 15-00401
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KYLE V. SEATON, DEFENDANT-APPELLANT.


BETZJITOMIR LAW OFFICE, BATH (SUSAN BETZJITOMIR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Steuben County Court (Joseph W.
Latham, J.), rendered December 22, 2014. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree (two
counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts of assault in the second degree
(Penal Law § 120.05 [1], [2]), arising from kicking the victim in the
head and face with steel-toed boots. The victim sustained a traumatic
brain injury and did not remember the details of the incident until
after he was released from the hospital. According to the victim, who
was 15 years old at the time of the offense, he terminated his long-
term friendship with defendant two to three months before this
incident after defendant was angry that the victim won a game of
Monopoly. Contrary to defendant’s contention, County Court did not
abuse its discretion in admitting Molineux evidence that, when the
game concluded, defendant sprayed an aerosol can of body spray in the
victim’s direction and then lit the spray, thereby burning the
victim’s arm. The People argued that the evidence was relevant to,
inter alia, defendant’s motive to harm the victim after he terminated
their friendship. In conducting the requisite two-part inquiry to
determine whether to permit evidence of alleged prior bad acts, the
court must determine whether “the proponent of the evidence
[identified] some material issue, other than the defendant’s criminal
propensity, to which the evidence is directly relevant” and, if that
showing is made, the court must then “weigh the evidence’s probative
value against its potential for undue prejudice to the defendant”
(People v Cass, 18 NY3d 553, 560). Here, although we note that “the
court . . . could have better recited its discretionary balancing of
                                 -2-                           198
                                                         KA 15-00401

the probity of such evidence against its potential for prejudice . .
. , we conclude that, viewing the record in its entirety, the court
conducted the requisite balancing test” (People v Lawrence, 141 AD3d
1079, 1081, lv denied 28 NY3d 1029 [internal quotation marks
omitted]). In any event, the court instructed the jury that the
evidence was to be considered solely with respect to the issue of
defendant’s motive, and “not for the purpose of proving that he had a
propensity or predisposition to commit the crimes charged,” thereby
minimizing any prejudicial effect (see id.).

     We reject defendant’s further contention that he was denied
effective assistance of counsel. Defendant failed to demonstrate the
absence of a strategic or other legitimate explanation for defense
counsel’s failure to request DNA testing of defendant’s boots, to
conduct a further cross-examination of a treating physician with
respect to the reliability of memory after a traumatic incident, or to
conduct a further cross-examination of the prosecution’s rebuttal
witness (see People v Caban, 5 NY3d 143, 154). Defendant’s contention
that counsel failed to call additional alibi witnesses involves
matters that are outside the record on appeal and must therefore be
raised by way of a motion pursuant to CPL 440.10 (see People v
Kaminski, 109 AD3d 1186, 1186, lv denied 22 NY3d 1088). Contrary to
defendant’s contention, defense counsel was not ineffective for
failing to have defendant testify inasmuch as it is well settled that
“[t]he fundamental decision whether to testify at trial is reserved to
the defendant, not defense counsel” (People v Cosby, 82 AD3d 63, 66,
lv denied 16 NY3d 857). Finally, although certain comments on the
evidence by defense counsel on summation could be construed as
unfavorable to defendant, counsel nevertheless emphasized alleged
shortcomings in the investigation of the crime, challenged the
victim’s credibility with respect to whether he remembered the
incident, and pointed out inconsistencies in the testimony of
prosecution witnesses. We conclude that any error with respect to
those comments was not “sufficiently egregious and prejudicial as to
deny defendant a fair trial” (People v Releford, 126 AD3d 1407, 1407,
lv denied 25 NY3d 1170).




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
