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

258
KA 09-01281
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY J. HOLMES, DEFENDANT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN, FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered May 29, 2009. The judgment convicted
defendant, upon a jury verdict, of assault in the third degree (two
counts), intimidating a victim or witness in the third degree (two
counts) and endangering the welfare of a child.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of two counts each of assault in the third degree (Penal
Law § 120.00 [1]) and intimidating a victim or witness in the third
degree (§ 215.15 [1]), and one count of endangering the welfare of a
child (§ 260.10 [1]), defendant challenges the legal sufficiency and
weight of the evidence with respect to the conviction of intimidating
a victim or witness in the third degree and endangering the welfare of
a child. Defendant failed to preserve for our review his contention
that the evidence supporting the conviction of endangering the welfare
of a child is legally insufficient on the ground that the child at
issue was not in the room where the assault occurred (see People v
Carncross, 14 NY3d 319, 324-325; People v Gray, 86 NY2d 10, 19; People
v Dizak, 93 AD3d 1182, 1185, lv denied 19 NY3d 972, reconsideration
denied 20 NY3d 932). Defendant’s contention that the evidence is
legally insufficient to support that conviction because the People
failed to establish that the child at issue was not mentally or
emotionally harmed, however, is properly before us (see People v
Payne, 3 NY3d 266, 273, rearg denied 3 NY3d 767). In any event, both
of defendant’s contentions with respect to the legal sufficiency of
the evidence supporting that conviction lack merit, as does
defendant’s contention concerning the legal sufficiency of the
evidence with respect to the conviction of intimidating a victim or
witness (see generally People v Bleakley, 69 NY2d 490, 495). In
addition, viewing the evidence in light of the elements of those
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crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). “[R]esolution of
issues of credibility, as well as the weight to be accorded to the
evidence presented, are primarily questions to be determined by the
jury” (People v Witherspoon, 66 AD3d 1456, 1457, lv denied 13 NY3d 942
[internal quotation marks omitted]).

     Contrary to defendant’s further contention, County Court’s
Molineux ruling did not constitute an abuse of discretion (see People
v Dorm, 12 NY3d 16, 19; People v Duperroy, 88 AD3d 606, 607, lv denied
18 NY3d 957; People v Galloway, 61 AD3d 520, 520-521, lv denied 12
NY3d 915). We note in any event that the court’s limiting instruction
in its jury charge “served to alleviate any potential prejudice
resulting from the admission of the evidence” (People v Alke, 90 AD3d
943, 944, lv denied 19 NY3d 994; see People v Freece, 46 AD3d 1428,
1429, lv denied 10 NY3d 811).

     Moreover, there is no merit to defendant’s contention that he was
prejudiced by the timing of the People’s notice of intention to offer
Molineux evidence, the timing of the Molineux hearing, which was
conducted during jury selection, and the timing of the court’s
Molineux ruling, which was made upon the completion of jury selection.
According to defendant, the timing of the court’s Molineux ruling upon
the completion of jury selection denied him the opportunity to explore
the potential impact of that evidence on voir dire. It is well
settled that “a defendant is not entitled as a matter of law to
pretrial notice of the People’s intention to offer evidence pursuant
to People v Molineux (168 NY 264 [1901]) or to a pretrial hearing on
the admissibility of such evidence” (People v Small, 12 NY3d 732, 733;
see People v Ventimiglia, 52 NY2d 350, 362). Defendant’s contention
that defense counsel was forced to prepare for trial as if there would
be no Molineux evidence lacks merit inasmuch as the record reflects
that the People advised defense counsel at the Sandoval hearing of the
possibility that Molineux issues would be raised shortly before trial,
and there is no record support for defendant’s further contention that
the timing of the Molineux request was such that defendant could not
discuss those issues with defense counsel. In any event, with respect
to the timing of the court’s Molineux ruling, we note that the court’s
limiting instruction concerning the jury’s consideration of such
evidence obviated any need for defense counsel during voir dire to
explore the impact of that evidence.

     Also without merit is defendant’s contention that the court
failed to engage in the second part of the Ventimiglia analysis, i.e.,
the court never analyzed whether the probative value of evidence of
defendant’s prior bad acts was outweighed by its potential for
prejudice (see People v Cass, 18 NY3d 553, 560; Ventimiglia, 52 NY2d
at 362). Although the court arguably could have better “recited its
discretionary balancing of the probity of such evidence against its
potential for prejudice” (People v Meseck, 52 AD3d 948, 950, lv denied
11 NY3d 739), we conclude that, viewing the record in its entirety,
the court conducted the requisite balancing test (see id.). Here,
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                                                         KA 09-01281

defense counsel opposed the introduction of the Molineux evidence
based on its prejudicial effect, and the court’s Molineux
determination included a limiting instruction to the jury (see People
v Milot, 305 AD2d 729, 731, lv denied 100 NY2d 585).

     Finally, we note that the certificate of conviction reflects that
defendant was convicted of assault in the third degree with respect to
the first count of the indictment under Penal Law § 120.00, rather
than more specifically under Penal Law § 120.00 (1), and it thus must
be amended to that extent (see generally People v Martinez, 37 AD3d
1099, 1100, lv denied 8 NY3d 947).




Entered:   March 22, 2013                       Frances E. Cafarell
                                                Clerk of the Court
