SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

198 

KA 15-00401 

PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

KYLE V. SEATON, DEFENDANT-APPELLANT. 

 

BETZJITOMIR LAW OFFICE, BATH (SUSAN BETZJITOMIR OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL),

FOR RESPONDENT. 

 

Appeal from a judgment of the Steuben County Court (Joseph W.

Latham, J.), rendered December 22, 2014. The judgment convicted

defendant, upon a jury verdict, of assault in the second degree (two

counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

following a jury trial of two counts of assault in the second degree

(Penal Law § 120.05 [1], [2]), arising from kicking the victim in the

head and face with steel-toed boots. The victim sustained a traumatic

brain injury and did not remember the details of the incident until

after he was released from the hospital. According to the victim, who

was 15 years old at the time of the offense, he terminated his longterm friendship with defendant two to three months before this

incident after defendant was angry that the victim won a game of

Monopoly. Contrary to defendant’s contention, County Court did not

abuse its discretion in admitting Molineux evidence that, when the

game concluded, defendant sprayed an aerosol can of body spray in the

victim’s direction and then lit the spray, thereby burning the

victim’s arm. The People argued that the evidence was relevant to,

inter alia, defendant’s motive to harm the victim after he terminated

their friendship. In conducting the requisite two-part inquiry to

determine whether to permit evidence of alleged prior bad acts, the

court must determine whether “the proponent of the evidence

[identified] some material issue, other than the defendant’s criminal

propensity, to which the evidence is directly relevant” and, if that

showing is made, the court must then “weigh the evidence’s probative

value against its potential for undue prejudice to the defendant”

(People v Cass, 18 NY3d 553, 560). Here, although we note that “the

court . . . could have better recited its discretionary balancing of
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KA 15-00401 

the probity of such evidence against its potential for prejudice . . 

. , we conclude that, viewing the record in its entirety, the court

conducted the requisite balancing test” (People v Lawrence, 141 AD3d

1079, 1081, lv denied 28 NY3d 1029 [internal quotation marks

omitted]). In any event, the court instructed the jury that the

evidence was to be considered solely with respect to the issue of

defendant’s motive, and “not for the purpose of proving that he had a

propensity or predisposition to commit the crimes charged,” thereby

minimizing any prejudicial effect (see id.).

We reject defendant’s further contention that he was denied

effective assistance of counsel. Defendant failed to demonstrate the

absence of a strategic or other legitimate explanation for defense

counsel’s failure to request DNA testing of defendant’s boots, to

conduct a further cross-examination of a treating physician with

respect to the reliability of memory after a traumatic incident, or to

conduct a further cross-examination of the prosecution’s rebuttal

witness (see People v Caban, 5 NY3d 143, 154). Defendant’s contention

that counsel failed to call additional alibi witnesses involves

matters that are outside the record on appeal and must therefore be

raised by way of a motion pursuant to CPL 440.10 (see People v

Kaminski, 109 AD3d 1186, 1186, lv denied 22 NY3d 1088). Contrary to

defendant’s contention, defense counsel was not ineffective for

failing to have defendant testify inasmuch as it is well settled that

“[t]he fundamental decision whether to testify at trial is reserved to

the defendant, not defense counsel” (People v Cosby, 82 AD3d 63, 66,

lv denied 16 NY3d 857). Finally, although certain comments on the

evidence by defense counsel on summation could be construed as

unfavorable to defendant, counsel nevertheless emphasized alleged

shortcomings in the investigation of the crime, challenged the

victim’s credibility with respect to whether he remembered the

incident, and pointed out inconsistencies in the testimony of

prosecution witnesses. We conclude that any error with respect to

those comments was not “sufficiently egregious and prejudicial as to

deny defendant a fair trial” (People v Releford, 126 AD3d 1407, 1407,

lv denied 25 NY3d 1170). 

Entered: February 10, 2017 Frances E. Cafarell

Clerk of the Court