THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. FREDDIE JACKSON DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree (Penal Law § 265.02[1] ), assault in the second degree

(§ 120.05[2] ), and criminal contempt in the second degree (§ 215.50[3] ).  We reject defendant's contention that County Court improperly allowed expert testimony on domestic violence.  Such testimony “ ‘may be admitted to explain behavior of a victim that might appear unusual or that jurors may not be expected to understand’ “ (People v. Williams, 20 NY3d 579, 584;  see People v. Woodworth, 111 AD3d 1368, 1369, lv denied 23 NY3d 969).  Here, the testimony was relevant in light of the victim's testimony regarding her conduct immediately after the assault and with respect to her communication with defendant prior to the first scheduled trial (see Woodworth, 111 AD3d at 1369;  People v. Hryckewicz, 221 A.D.2d 990, 990–991, lv denied 88 N.Y.2d 849).  In any event, any error in allowing such testimony is harmless.  The evidence of guilt is overwhelming, and there is no significant probability that the absence of the error would have led to an acquittal (see Williams, 20 NY3d at 585;  People v. Eckhardt, 305 A.D.2d 860, 864, lv denied 100 N.Y.2d 620;  see generally People v. Crimmins, 36 N.Y.2d 230, 241–242).

Defendant failed to preserve for our review his contention that prosecutorial misconduct deprived him of a fair trial (see People v. Machado, 144 AD3d 1633, 1635;  People v. Love, 134 AD3d 1569, 1570, lv denied 27 NY3d 967) and we conclude that defendant's contention is without merit in any event.  We reject defendant's further contention that he was penalized for exercising his right to a trial (see People v. Pope, 141 AD3d 1111, 1112;  see generally People v. Martinez, 26 NY3d 196, 200).  Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court