PEOPLE v. CALL

Judgment unanimously affirmed. Memorandum: Defendant was convicted of criminally negligent homicide, as a lesser included offense of the crime of murder in the second degree, and assault in the third degree. We have weighed the probative strength of the conflicting testimony at trial and the relative strength of the conflicting inferences that may be drawn from that testimony (see, People v Bleakley, 69 N.Y.2d 490, 495) and conclude that the conviction for criminally negligent homicide was not against the weight of the evidence.

Because defendant was charged with depraved indifference murder (Penal Law § 125.25), neither his intent nor his motive at the time of the crime was a material issue at trial. Thus, the trial court erred in allowing evidence of prior acts of violence directed by defendant at his wife. That error, however, was harmless (see, People v Crimmins, 36 N.Y.2d 230, 241; see also, People v Rivera, 132 A.D.2d 956). The proof that defendant's assault upon his pregnant wife led to the death of his prematurely born son was overwhelming, and there is no probability that the jury's verdict was influenced by the improperly admitted evidence.

We have examined defendant's other contentions and find them to be without merit.