PEOPLE v. NELSON

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

The PEOPLE of the State of New York, Respondent, v. Arthur NELSON, Defendant-Appellant.  (Appeal No. 1.)

Decided: December 31, 2008

PRESENT:  MARTOCHE, J.P., SMITH, FAHEY, AND PINE, JJ. Richard W. Youngman, Conflict Defender, Rochester (R. Adrian Solomon of Counsel), for Defendant-Appellant. Michael C. Green, District Attorney, Rochester (Leslie E. Swift of Counsel), for Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of, inter alia, kidnapping in the second degree (Penal Law § 135.20) and assault in the second degree (§ 120.05[2] ).   Contrary to defendant's contention, Supreme Court properly admitted in evidence testimony concerning battered woman syndrome.   That testimony was relevant “ ‘to explain behavior on the part of the [victim] that might seem unusual to a lay jury unfamiliar with the patterns of response exhibited’ by a person who has been physically and sexually abused over a period of time” (People v. Hryckewicz, 221 A.D.2d 990, 991, 634 N.Y.S.2d 297, lv. denied 88 N.Y.2d 849, 644 N.Y.S.2d 695, 667 N.E.2d 345, quoting People v. Bennett, 79 N.Y.2d 464, 471, 583 N.Y.S.2d 825, 593 N.E.2d 279;  see People v. Smith, 9 A.D.3d 745, 747, 779 N.Y.S.2d 853, lv. denied 3 N.Y.3d 742, 786 N.Y.S.2d 821, 820 N.E.2d 300).

 Contrary to defendant's further contention, the court did not abuse its discretion in admitting evidence of defendant's prior bad acts, i.e., incidents concerning defendant's prior abuse of the victim, “as background material to aid the jury in understanding the relationship between defendant and the victim” (People v. Cook, 251 A.D.2d 1033, 1034, 675 N.Y.S.2d 268, affd. 93 N.Y.2d 840, 688 N.Y.S.2d 89, 710 N.E.2d 654;  see People v. Sommerville, 30 A.D.3d 1093, 1094, 816 N.Y.S.2d 651;  People v. Wright, 288 A.D.2d 409, 733 N.Y.S.2d 225, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370).   The evidence of that prior abuse was relevant with respect to defendant's motive and intent, as well as with respect to the absence of mistake or accident (see People v. Irvine, 52 A.D.3d 866, 867-868, 859 N.Y.S.2d 264, lv. denied 11 N.Y.3d 737, 864 N.Y.S.2d 396, 894 N.E.2d 660;  People v. Beriguete, 51 A.D.3d 939, 858 N.Y.S.2d 369, lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 393, 894 N.E.2d 657;  Wright, 288 A.D.2d at 410, 733 N.Y.S.2d 225).

Finally, defendant failed to preserve for our review his contention that the conviction of kidnapping is barred by the merger doctrine (see People v. Richard, 30 A.D.3d 750, 755, 817 N.Y.S.2d 698, lv. denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145;  see generally People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233, rearg. denied 75 N.Y.2d 1005, 557 N.Y.S.2d 312, 556 N.E.2d 1119, rearg. dismissed 81 N.Y.2d 989, 599 N.Y.S.2d 797, 616 N.E.2d 152;  People v. D'Eredita, 302 A.D.2d 925, 755 N.Y.S.2d 673, lv. denied 99 N.Y.2d 654, 760 N.Y.S.2d 118, 790 N.E.2d 292).   In any event, that contention is without merit (see People v. O'Connor, 21 A.D.3d 1364, 802 N.Y.S.2d 810, lv. denied 6 N.Y.3d 757, 810 N.Y.S.2d 425, 843 N.E.2d 1165;  People v. Santiago, 305 A.D.2d 1109, 1110, 757 N.Y.S.2d 922, lv. denied 100 N.Y.2d 586, 764 N.Y.S.2d 397, 796 N.E.2d 489;  People v. Schojan, 272 A.D.2d 932, 934, 709 N.Y.S.2d 273, lv. denied 95 N.Y.2d 871, 715 N.Y.S.2d 226, 738 N.E.2d 374).

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

MEMORANDUM: