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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Michael A. Mc KEEHAN, Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., GREEN, PINE, HURLBUTT, AND KEHOE, JJ. Christine M. Cook, Lyons, for Defendant-Appellant. John C. Tunney, District Attorney, Bath, for Plaintiff-Respondent.

 Defendant appeals from a judgment entered upon a jury verdict convicting him of assault in the first degree (Penal Law § 120.10 [3] ) and endangering the welfare of a child (§ 260.10[1] ) arising from his physical abuse of his girlfriend's 10-month-old infant.   Contrary to defendant's contention, County Court did not err in allowing the infant's mother to testify that defendant previously had punched her on one occasion and had twice threatened to kill her.   That testimony was admissible to explain why the mother did not leave defendant's residence when she began noticing bruises on her child and why, on defendant's instructions, she lied to medical personnel that the child's injuries were caused by a fall from a couch.  “There is ample case law to support the proposition that uncharged crime evidence may be used to support testimony that otherwise might be unbelievable or suspect” (People v. Steinberg, 170 A.D.2d 50, 74, 573 N.Y.S.2d 965, affd. 79 N.Y.2d 673, 584 N.Y.S.2d 770, 595 N.E.2d 845).   In addition, the court gave a limiting instruction, thereby minimizing any prejudice to defendant (see generally People v. Maddox, 272 A.D.2d 884, 708 N.Y.S.2d 769, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370).   Even assuming, arguendo, that the court erred in admitting that testimony, we conclude that any error is harmless (see People v. Kello, 96 N.Y.2d 740, 744, 723 N.Y.S.2d 111, 746 N.E.2d 166;  People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  see also People v. Hill, 300 A.D.2d 1125, 1126, 752 N.Y.S.2d 454, lv. denied 99 N.Y.2d 615, 757 N.Y.S.2d 826, 787 N.E.2d 1172).   Contrary to the further contention of defendant, the jury could properly infer from the evidence presented at trial that he acted recklessly and with depraved indifference in causing the child's injuries (see People v. Jersey, 306 A.D.2d 184, 761 N.Y.S.2d 218, lv. denied 100 N.Y.2d 621, 767 N.Y.S.2d 404, 799 N.E.2d 627;  People v. Moore, 277 A.D.2d 596, 597, 715 N.Y.S.2d 546, lv. denied 96 N.Y.2d 761, 725 N.Y.S.2d 288, 748 N.E.2d 1084;  see also People v. Mannix, 302 A.D.2d 297, 297-298, 756 N.Y.S.2d 33, lv. denied 100 N.Y.2d 622, 767 N.Y.S.2d 406, 799 N.E.2d 629).   Thus, we conclude that the conviction is supported by legally sufficient evidence and the verdict is not against the weight of the evidence (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's contention that the “depraved indifference” standard of Penal Law § 120.10(3) is unconstitutionally vague, both in general and as applied to the instant case, is not properly before us because that contention is unpreserved for our review and the requisite notice was not given to the Attorney General (see Executive Law § 71;  People v. Ferris, 105 A.D.2d 1136, 1137, 482 N.Y.S.2d 400).

We reject the contention of defendant that the court erred in denying his motion to suppress his statements to police investigators.   Contrary to the contention of defendant, there is nothing in the record to indicate that he was under arrest or restrained from leaving in any way, that the atmosphere was hostile, that he requested an attorney or asked that questioning cease, or that he did not want to cooperate with the investigators before he was advised of his Miranda rights.   After defendant was advised of his Miranda rights, defendant waived those rights and told investigators that he would continue to answer questions.   The court's findings are supported by the evidence presented at the hearing on defendant's motion, and we see no reason to disturb those findings (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Coleman, 306 A.D.2d 941, 760 N.Y.S.2d 797).   In addition, the court did not err in refusing to charge the jury on the voluntariness of defendant's statements (see generally CPL 710.70[3] ).   Defendant raised no factual dispute with respect to that issue (see People v. Cefaro, 23 N.Y.2d 283, 288-289, 296 N.Y.S.2d 345, 244 N.E.2d 42;  People v. Congelosi, 266 A.D.2d 930, 930-931, 698 N.Y.S.2d 810, lv. denied 94 N.Y.2d 902, 707 N.Y.S.2d 386, 728 N.E.2d 985, 95 N.Y.2d 794, 711 N.Y.S.2d 162, 733 N.E.2d 234;  People v. Conway, 186 A.D.2d 1050, 1050-1051, 588 N.Y.S.2d 491, lv. denied 81 N.Y.2d 761, 594 N.Y.S.2d 723, 610 N.E.2d 396).   Finally, the sentence is neither unduly harsh nor severe.

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