The People of the State of New York, Respondent, v. John Bartee, Defendant-Appellant. (2024)

Per Curiam.

Judgment of conviction (Audrey E. Stone, J.), rendered November 14, 2019, modified, on the law, to vacate defendant's conviction of harassment in the second degree and to dismiss that count of the accusatory instrument, and otherwise affirmed.

The verdict convicting defendant of two counts of third-degree assault (see Penal Law § 120.00), was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). We find no basis on this record to disturb the jury's determination. Even assuming, arguendo, that Criminal Court erred in admitting limited Molineux evidence (see People v Molineux, 168 NY 264 [1901]; People v Weinstein, ___ NY3d ___, 2024 NY Slip Op 02222 [2024]), we conclude that any such error is harmless. There was overwhelming evidence that defendant brutally attacked the victim on July 6th and September 23rd of 2018, including testimony, medical records and contemporaneous photographs, and there is no significant probability that the jury would have acquitted defendant but for the alleged error (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

The testimony of the domestic violence expert was properly admitted to aid the jury in understanding the victim's unusual behavior, including her staying in the relationship after the prior abuse and her failure to report the incidents to authorities (see People v Spicola, 16 NY3d 441, 465 [2011], cert denied 565 US 942 [2011]; People v Reese, 222 AD3d 535 [2023]; People v Levasseur, 133 AD3d 411, 412 [2015], lv denied 27 NY3d 1001 [2016]). The testimony was not unduly prejudicial, as the expert testified to the dynamics of domestic violence in general terms, and did not offer any opinions regarding the parties or facts at issue (see People v Diaz, 20 NY3d 569, 575—576 [2013]; People v Reese, 222 AD3d at 535-536). Moreover, any prejudice was minimized by the court's limiting instructions.

With respect to the second-degree harassment conviction, based upon an incident originally alleged to have occurred on September 13, 2018, we agree with defendant that the information could not be amended during jury selection to change the date of the alleged incident. "The CPL requires a superseding accusatory instrument supported by a sworn statement containing the correct factual allegations" (People v Hardy, 35 NY3d 466, 469 [2020]). The variance between the charge as set forth in the accusatory instrument and the proof at trial deprived defendant of fair notice of the charge upon which he was to be tried.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: May 28, 2024