People v. Mack

Jun 16, 2000
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Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant was convicted following a jury trial of two counts of aggravated harassment of an employee by an inmate (Penal Law § 240.32) arising out of his throwing urine and/or feces on two correction officers. He was sentenced to consecutive terms of imprisonment of 21h to 5 years and fined $5,000 on each count. Upon our review of the record, we conclude that the evidence is legally sufficient to support the conviction (see, People v Taylor, 94 NY2d 910; People v Bleakley, 69 NY2d 490, 495).

Defendant’s contention that the People’s expert witness was not properly qualified as an expert is not preserved for our review (see, CPL 470.05 [2]; People v Stabell, 270 AD2d 894; People v Highsmith, 254 AD2d 768, 769, lv denied 92 NY2d 983, 1033). In any event, there is no merit to that contention. The record establishes that the witness was qualified to provide opinion testimony (see, People v Stabell, supra).

Defendant also failed to preserve for our review his contention that County Court’s charge on intent impermissibly shifted the burden of proof to defendant (see, People v McKenzie, 67 NY2d 695, 697; People v Thomas, 50 NY2d 467). In any event, the court properly instructed the jury that the presumption was permissive and did not shift the burden of proof to defendant (see, People v McKenzie, supra, at 696-697).

Because the two offenses were committed through a single act, the imposition of consecutive sentences of imprisonment and two fines was improper (see, Penal Law § 70.25 [2]; § 80.15). Thus, we modify the judgment by providing that the sentences run concurrently and by vacating the fine imposed on the second count of the indictment (see, People v Taylor, 197 AD2d 858, 859). (Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Aggravated Harassment of Employee by Inmate.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.