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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Patrick GUITEAU, Defendant-Appellant.

Decided: December 30, 1999

PRESENT:  PINE, J.P., HAYES, WISNER, PIGOTT, JR., and SCUDDER, JJ. Maria A. Massaro, Niagara Falls, for defendant-appellant. Timothy P. Murphy, for plaintiff-respondent.

 On appeal from a judgment of conviction, after retrial, of assault in the first degree (Penal Law § 120.10[3] ), defendant contends that County Court erred in admitting evidence concerning prior domestic assaults against the victim.   We conclude that the evidence of those prior assaults was admissible to establish motive, intent and the absence of a mistake or accident (see, People v. Molineux, 168 N.Y. 264, 293-294, 61 N.E. 286;  see also, People v. Alvino, 71 N.Y.2d 233, 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808).   Because defendant contended that the victim's injuries were sustained when he was not present or as the result of a fall, the evidence is probative of the crime charged (see, People v. Ely, 68 N.Y.2d 520, 529, 510 N.Y.S.2d 532, 503 N.E.2d 88).   The court's failure to balance the probative value of each offer of proof against its potential for prejudice does not require reversal.   Evidence that defendant admitted or was observed assaulting the victim was admissible because its probative value outweighed its prejudicial effect (see, People v. Flowers, 245 A.D.2d 1088, 667 N.Y.S.2d 546, lv. denied 91 N.Y.2d 972, 672 N.Y.S.2d 851, 695 N.E.2d 720).   Although the court erred in admitting evidence that the victim was seen with bruises because that evidence had slight probative value, the error is harmless.   The remaining evidence of defendant's guilt is overwhelming, and there is no significant probability that the error contributed to defendant's conviction (see, People v. Schrader, 251 A.D.2d 1032, 674 N.Y.S.2d 882, lv. denied 92 N.Y.2d 882, 678 N.Y.S.2d 29, 700 N.E.2d 567).

 The victim has been in a coma since the attack, and defendant has failed to admit responsibility or show remorse.   The sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.


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