People v. Ashman

292 A.D.2d 458, 738 N.Y.S.2d 874, 2002 N.Y. App. Div. LEXIS 2556

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 2002
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin, J.), rendered September 8, 1998, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court properly admitted into evidence the testimony of his former girlfriend concerning his prior uncharged assault against her. The witness was dating the decedent at the time of the shooting, and her testimony concerning the assault was relevant concerning the defendant’s motive for shooting the decedent and as background information necessary for the jury to understand the relationship between the parties (see, People v Ventimiglia, 52 NY2d 350, 359-361; People v Montanez, 41 NY2d 53, 58; People v Shorey, 172 AD2d 634, 635).

The defendant’s contention that the trial court improperly allowed a 10-year-old prosecution witness to give sworn testimony is not preserved for appellate review, as he failed to raise the issue in the trial court (see, CPL 470.05 [2]; People v King, 187 AD2d 612, 613). In any event, the contention is without merit, as the record supports the trial court’s conclusion that the child witness understood the nature of an oath (see, People v Diaz, 172 AD2d 389; People v Roger S., 168 AD2d 581; People v McDaniel, 165 AD2d 817).

The defendant’s remaining contentions are unpreserved for appellate review and, in any event, without merit. Krausman, J.P., McGinity, H. Miller and Adams, JJ., concur.