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

The PEOPLE of the State of New York, Respondent, v. Ronell S. AGEE, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., MARTOCHE, SMITH, GREEN, AND GORSKI, JJ. Timothy P. Donaher, Public Defender, Rochester (William Clauss of Counsel), for Defendant-Appellant. Ronell S. Agee, Defendant-Appellant Pro Se. Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of Counsel), for Respondent.

 On appeal from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10[3] [depraved indifference] ), defendant contends that the evidence is legally insufficient to support the conviction.   Defendant failed to renew his motion for a trial order of dismissal and has thus failed to preserve that contention for our review (see People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61;  People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396).   Defendant has further failed to preserve for our review his contention that the indictment must be dismissed because the evidence before the grand jury was legally insufficient to establish the crime of depraved indifference assault (see generally People v. Bryan, 50 A.D.3d 1049, 1050, 856 N.Y.S.2d 227, lv. denied 11 N.Y.3d 786, 866 N.Y.S.2d 612, 896 N.E.2d 98;  People v. Stone, 225 A.D.2d 1067, 1068, 639 N.Y.S.2d 603, lv. denied 88 N.Y.2d 886, 645 N.Y.S.2d 460, 668 N.E.2d 431).   Defendant's omnibus motion sought inspection of the grand jury minutes and dismissal of the indictment only on the general ground that the evidence before the grand jury was legally insufficient, and defendant failed to set forth the specific grounds for dismissal now set forth on appeal, i.e., that the evidence was insufficient to establish either the element of recklessness or the element of depraved indifference (see People v. Brown, 81 N.Y.2d 798, 595 N.Y.S.2d 370, 611 N.E.2d 271).

 We reject the further contention of defendant that he was denied the right to effective assistance of counsel based on the failure of defense counsel both to renew the motion for a trial order of dismissal and to challenge the legal sufficiency of the grand jury evidence on the specific grounds now raised on appeal.   Rather, viewing defense counsel's representation as a whole, we conclude that defendant received effective assistance of counsel (see People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671;  People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, we conclude that Supreme Court did not err in allowing the People to present testimony concerning defendant's prior bad acts.   The record establishes that the court properly balanced the probative value of the testimony with respect to defendant's motive and intent against its potential for prejudice (see People v. Spotford, 85 N.Y.2d 593, 597, 627 N.Y.S.2d 295, 650 N.E.2d 1296;  People v. Ventimiglia, 52 N.Y.2d 350, 362, 438 N.Y.S.2d 261, 420 N.E.2d 59), and the record further establishes that the court properly admitted the evidence “as relevant background material” (People v. Bedi, 299 A.D.2d 556, 556, 750 N.Y.S.2d 523, lv. denied 99 N.Y.2d 612, 757 N.Y.S.2d 822, 787 N.E.2d 1168).

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