People v Jirgal (John)

[*1] People v Jirgal (John) 2006 NY Slip Op 52280(U) [13 Misc 3d 142(A)] Decided on November 27, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ
2005-923 RO CR.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

John Jirgal, Appellant.

Appeal from a judgment of the Justice Court of the Town of Clarkstown, Rockland County (Victor J. Alfieri, Jr., J.), rendered June 8, 2005. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

Judgment of conviction affirmed.

Resolution of matters of credibility and the weight to be accorded the evidence are questions primarily to be determined by the trier of fact which saw and heard the witnesses (People v Gaimari, 176 NY 84, 94 [1903]). Its determination must be accorded great weight on appeal and should not be disturbed unless clearly unsupported by the record (People v Garafolo, 44 AD2d 86, 88 [1974]). The herein factual determinations are well supported in the record, and upon the exercise of our factual review power, we are satisfied that defendant's conviction of harassment in the second degree (Penal Law § 240.26 [1]) was not against the weight of the evidence (CPL 470.15 [5]).

With a single exception, defendant's contention that the People improperly introduced evidence of his prior misconduct toward the complainant, without having sought a hearing to determine the evidence's admissibility (People v Ventimiglia, 52 NY2d 350, 359-360 [1981]), is not preserved for appellate review (CPL 470.05 [2]; e.g. People v James, 262 AD2d 500 [1999]). To the extent the issue is preserved, we agree that the "better practice" is for the People to seek an advance ruling (People v McLeod, 279 AD2d 372, 372 [2001]), thereby enabling the court to exercise the necessary "discretionary balancing of the probative value and the need for the [*2]evidence against the potential for delay, surprise, and prejudice" (People v Alvino, 71 NY2d 233, 242 [1987]). However, there is no absolute right to a pretrial hearing on the issue and defendant has not established that he was prejudiced by the lack of pretrial notice of the People's intent to offer the evidence (People v Torres, 300 AD2d 46 [2002]). Moreover, as this case involved a bench trial, it is presumed that the court which heard defendant's objection to the evidence, properly balanced the evidence's probative and prejudicial values and accorded it the appropriate weight in its evidentiary determinations (People v Moreno, 70 NY2d 403, 406 [1987]; People v Torres, 1 AD3d 621 [2003]; People v Rooney, 5 Misc 3d 126[A], 2004 NY Slip Op 51188[U] [App Term, 9th & 10th Jud
Dists]). In any event, the testimony was properly admitted as evidence of defendant's "prior violence and his abusive, controlling behavior toward the victim," which was
relevant on issues of intent and motive (People v Gorham, 17 AD3d 858, 860 [2005];
see also People v Wlasiuk, 32 AD3d 674, 677-678 [2006]).

The defendant's remaining contentions are unpreserved for appellate review (People v Seit, 86 NY2d 92, 95-96 [1995]; People v Rogelio, 79 NY2d 843,
844 [1992]; James, 262 AD2d at 501; People v Rivera, 234 AD2d 148 [1996]).
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.
Decision Date: November 27, 2006