The People of the State of New York, Respondent, v. Shane R. Brewer, Appellant

The People of the State of New York, Respondent, v Shane R. Brewer, Appellant. [743 NYS2d 920] [MAJORITY] —Appeal from a judgment of Wyoming County Court (Dadd, J.), entered January 23, 2001, convicting defendant after a jury trial of, inter alia, assault in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: The evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621), is legally sufficient to support the conviction of assault in the first degree (Penal Law § 120.10 [3]) and endangering the welfare of a child (§ 260.10 [1]) based on the conduct of defendant that caused injury to his two-month-old daughter. Contrary to the contention of defendant, County Court properly admitted evidence that he was previously convicted of endangering the welfare of a child for engaging in conduct injurious to his son (see People v Caccese, 211 AD2d 976, 977-978, lv denied 86 NY2d 780). That evidence was relevant to show the absence of accident or mistake (see id.; see also People v Henson, 33 NY2d 63, 71-73; People v Holloway, 185 AD2d 646, 647, lv denied 80 NY2d 1027), and the probative value of that evidence outweighed its potential for prejudice (see People v Hudy, 73 NY2d 40, 55; Holloway, 185 AD2d at 647). The contention of defendant that he was denied his rights to due process and a fair trial when the court dismissed the charges against the codefendant, raised for the first time in his motion to set aside the verdict (see CPL 330.30 [1]), is not preserved for our review (see 470.05 [2]; People v Laraby, 92 NY2d 932, 933). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Present—Pigott, Jr., P.J., Green, Scudder, Burns and Gorski, JJ.