People v. Kloster

Judgment unanimously affirmed. Memorandum: There is no merit to defendant’s argument that the record lacks sufficient evidence to support the trial court’s determination that the infant victim sustained serious physical injury (see, Penal Law § 10.00 [10]; § 120.10 [3]; see also, People v Wright, 105 AD2d 1088). We reject defendant’s contention that the court, in this nonjury trial, erred by admitting rebuttal evidence of defendant’s prior bad act. The testimony from a former baby-sitter that she observed defendant physically abuse the victim on a prior occasion was probative to negate the credibility of defendant’s claim of an accidental cause for the victim’s injuries and was relevant on the issue of the identity of the guilty [897] party (see, People v Allweiss, 48 NY2d 40, 47; People v Sims, 110 AD2d 214, 223, lv denied 67 NY2d 657). Further, the probative value of this testimony outweighed its possible prejudicial effect (see, People v Sims, supra, at 220). The trial court did not err in admitting photographs of the victim taken shortly after the incident (see, People v Pobliner, 32 NY2d 356, cert denied 416 US 905; People v Ferris, 105 AD2d 1136). We find that the sentence imposed was not harsh and excessive. We have reviewed defendant’s remaining contention and find that it lacks merit. (Appeal from judgment of Lewis County Court, Merrell, J.—assault, first degree.) Present—Dillon, P. J., Denman, Pine, Lawton and Davis, JJ.