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

1401
KA 10-00810
PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND GORSKI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL PRATCHETT, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (SHAWN P. HENNESSY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered November 30, 2009. The judgment
convicted defendant, upon a jury verdict, of assault in the second
degree.

     It is hereby ORDERED that said appeal from the judgment insofar
as it imposed a sentence of incarceration is unanimously dismissed and
the judgment is otherwise affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of assault in the second degree (Penal Law §
120.05 [2]). Defendant “failed to preserve for our review his
contention that the People failed to present legally sufficient
evidence to disprove his justification defense [inasmuch as] he did
not move for a trial order of dismissal on that ground” (People v
Smalls, 70 AD3d 1328, 1330, lv denied 14 NY3d 844, 15 NY3d 778; see
People v Gray, 86 NY2d 10, 19). Viewing the evidence in light of the
elements of the crime 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 People v Bleakley, 69 NY2d 490,
495).

     Defendant also failed to preserve for our review his contention
that Supreme Court erred in permitting the victim to testify in his
military uniform (see CPL 470.05 [2]). In any event, the fact that
the victim was wearing a military uniform while testifying did not
deprive defendant of a fair trial (see People v Aupperlee, 168 AD2d
561, lv denied 77 NY2d 958). We reject the further contention of
defendant that the court erred in refusing to suppress his statement
to the police. “In concluding that defendant’s statement to the
police was voluntarily made . . ., the suppression court was entitled
to credit the testimony of [the] police witness[ ] that defendant was
                                 -2-                          1401
                                                         KA 10-00810

advised of his Miranda rights and knowingly, voluntarily and
intelligently waived those rights” (People v Brooks, 26 AD3d 739, 740,
lv denied 6 NY3d 846, 7 NY3d 810).

     We dismiss the appeal to the extent that defendant challenges the
severity of the sentence inasmuch as he has completed serving his
sentence and that part of the appeal therefore is moot (see People v
Richardson, 85 AD3d 1556, amended on rearg 87 AD3d 1415; People v
Griffin, 239 AD2d 936). We have reviewed defendant’s remaining
contention and conclude that it is without merit.




Entered:   December 30, 2011                   Frances E. Cafarell
                                               Clerk of the Court
