People v. Wingate

142 A.D.3d 630, 36 N.Y.S.3d 607

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dwyer, J.), rendered September 16, 2014, convicting him of assault in the second degree and criminal contempt in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The Supreme Court improvidently exercised its discretion in allowing the People to introduce certain uncharged crime evidence (see People v Alvino, 71 NY2d 233, 241-242 [1987]; see also People v Resek, 3 NY3d 385, 390 [2004]; cf. People v Dorm, 12 NY3d 16, 19 [2009]; People v Pham, 118 AD3d 1159, 1161 [2014]; People v Ashman, 292 AD2d 458, 458-459 [2002]). However, contrary to the defendant’s contention, under the circumstances of this case, the error did not deprive him of his due process right to a fair trial (see People v Crimmins, 36 NY2d 230, 238 [1975]; see also People v Smith, 131 AD3d 1270, 1273 [2015]).

The defendant’s contention that the sentence imposed was improperly based on the crime of which he was acquitted is unpreserved for appellate review (see CPL 470.05 [2]; People v Malcolm, 131 AD3d 1068, 1071 [2015]; People v Morgan, 27 AD3d 579, 580 [2006]) and, in any event, without merit (see People v Morgan, 27 AD3d at 580; People v Robinson, 250 AD2d 629, 629 [1998]; cf. People v Grant, 94 AD3d 1139, 1141-1142 [2012]). Moreover, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).

Chambers, J.P., Dickerson, Duffy and LaSalle, JJ., concur.