PEOPLE v. ALLAH

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

The PEOPLE, etc., respondent, v. Shariff ALLAH, appellant.

Decided: December 27, 2004

SONDRA MILLER, J.P., GABRIEL M. KRAUSMAN, ROBERT A. SPOLZINO, and ROBERT A. LIFSON, JJ. Lynn W.L. Fahey, New York, N.Y. (Denise A. Corsí of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ruth E. Ross, and Tziyonah M. Langsam of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Starkey, J.), rendered June 10, 2003, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, the evidence of prior injuries to a child in his care was admissible to refute his assertion that the death of the victim in this case was accidental (see People v. Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657, 304 N.E.2d 358;  People v. Howard, 285 A.D.2d 560, 728 N.Y.S.2d 492;  People v. Davis, 216 A.D.2d 485, 628 N.Y.S.2d 742;  People v. Basir, 179 A.D.2d 662, 578 N.Y.S.2d 603;  People v. Sims, 110 A.D.2d 214, 494 N.Y.S.2d 114).   Particularly in cases involving child abuse, evidence of prior bad acts is highly relevant to establish a lack of mistake or accident (see People v. Henson, supra;  People v. Basir, supra ).

 The Supreme Court properly admitted into evidence two photographs depicting the victim's head during the autopsy, as they were admitted to illustrate the testimony of the doctor who performed the autopsy (see People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Pobliner, 32 N.Y.2d 356, 369, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).

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