People v Dwight Dilbert

People v Dilbert 2003 NY Slip Op 18653 [1 AD3d 967] November 21, 2003 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 28, 2004

The People of the State of New York, Respondent,
v
Dwight Dilbert, Appellant.

— Appeal from a judgment of Supreme Court, Erie County (Forma, J.), entered May 24, 2001, convicting defendant after a jury trial of, inter alia, murder in the second degree.

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

Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [2]) and aggravated criminal contempt (§ 215.52). We reject the contention of defendant that he was denied a fair trial by the admission in evidence of a threatening letter written by defendant to the victim and the testimony of a coworker of the victim regarding a conversation she had with defendant in which he threatened to kill the victim if he had to go to jail because she reported a prior incident to police. Supreme Court properly admitted that evidence because it was probative of defendant's motive and intent to kill the victim (see People v Zarif, 290 AD2d 401, 402 [2002], lv denied 98 NY2d 683 [2002]; People v Kanner, 272 AD2d 866, 867 [2000], lv denied 95 NY2d 867 [2000]; People v Rolf, 185 AD2d 656 [1992], lv denied 80 NY2d 933 [1992]). The verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is neither unduly harsh nor severe.

Contrary to the contention of defendant raised in his pro se supplemental brief, he received effective assistance of counsel (see People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to identify any conduct of his attorney that rendered her assistance ineffective (see People v Ivey, 272 AD2d 883 [2000], lv denied 96 NY2d 902 [2001]). The further contention of defendant raised in his pro se supplemental brief concerning the conduct of the prosecutor before the grand jury is not reviewable on appeal because the grand jury minutes are not included in the record on appeal (see People v Sumpter, 185 AD2d 629, 630 [1992], lv denied 80 NY2d 1030, 81 NY2d 848 [1992]; see also Matter of Shellito D., 226 AD2d 1075, 1075-1076 [1996]). The remaining contentions raised in defendant's pro se supplemental brief are not preserved for our review (see CPL 470.05 [2]) and, in any event, are without merit. Present—Green, J.P., Wisner, Hurlbutt, Kehoe and Hayes, JJ.