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

The PEOPLE of the State of New York, Respondent, v. Patrick MCMULLAN, Defendant–Appellant.


Decided: February 28, 2019

Friedman, J.P., Kapnick, Webber, Oing, Singh, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Allison Haupt of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brent Ferguson of counsel), for respondent.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348–349 [2007] ).  There is no basis for disturbing the jury's credibility determinations.  The evidence warranted the inference that the victim's injuries went beyond mere “petty slaps, shoves, kicks and the like” (Matter of Philip A., 49 N.Y.2d 198, 200 [1980] ), and that they caused “more than slight or trivial pain” (People v. Chiddick, 8 NY3d 445, 447 [2007];  see also People v. Guidice, 83 N.Y.2d 630, 636 [1994] ).  Defendant's acquittal of another charge does not warrant a different conclusion (see People v. Rayam, 94 N.Y.2d 557 [2000] ).  The evidence also established the elements of endangering the welfare of a child, including knowledge.  Penal Law § 260.10(1) is not unconstitutionally vague, either on its face, or as applied to defendant (see People v. Snead, 302 A.D.2d 268, 269 [1st Dept 2003];  see also People v. Stuart, 100 N.Y.2d 412, 420 [2003] ).

In this domestic violence case, the court providently exercised its discretion in admitting evidence, limited to only one of several incidents, of defendant's past abuse of the victim.  This background information was highly relevant to particular issues raised by defendant at trial, including the victim's failure to call the police, and the uncharged incident tended to place the events in question in a believable context (see People v. Leeson, 12 NY3d 823, 827 [2009];  People v. Dorm, 12 NY3d 16, 19 [2009];  People v. Steinberg, 170 A.D.2d 50, 72–74 [1st Dept 1991], affd 79 N.Y.2d 673 [1992] ).  The probative value of this evidence exceeded any prejudicial effect, which was minimized by the court's instructions.

Defendant did not preserve his claim that photographs and medical records related to the earlier, dismissed case should have been excluded as having been obtained in violation of the sealing requirements of CPL 160.50, and we decline to review it in the interest of justice.

We perceive no basis for reducing the sentence.