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

366
KA 08-01776
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

JEUANE H. HARVEY, ALSO KNOWN AS JEVENE HARVEY,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered July 28, 2008. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
weapon in the second degree and reckless endangerment in the second
degree.

     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 criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]) and reckless endangerment in
the second degree (§ 120.20). The People presented evidence at trial
that defendant fired a weapon while standing on a sidewalk in the City
of Rochester, and that children were playing in the adjacent street
and pedestrians were on the sidewalk. Contrary to defendant’s
contention, he was not entitled to pretrial notice that the People
intended to present a witness who would testify that defendant
approached her several months after the shooting and asked her whether
she was going to appear in court (see People v Small, 12 NY3d 732,
733). Even assuming, arguendo, that Supreme Court erred in
determining that the evidence does not constitute Molineux evidence,
we conclude that the court properly determined that the evidence was
relevant to the issue of identity, and we further conclude that the
probative value of the testimony on that issue outweighed any
prejudice to defendant (see People v Igbinosun, 24 AD3d 1250, 1251;
see generally People v Ventimiglia, 52 NY2d 350, 359-360). We reject
defendant’s contention that the sentence is unduly harsh and severe.

Entered:   April 26, 2013                          Frances E. Cafarell
                                                   Clerk of the Court
