| People v Van Demps |
| 2014 NY Slip Op 04272 [118 AD3d 1146] |
| June 12, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vVan Demps, Appellant. |
Theodore J. Stein, Woodstock, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Jessica Mila Schutzman ofcounsel), for respondent.
McCarthy, J. Appeal from a judgment of the Supreme Court (Breslin, J.), renderedAugust 3, 2012 in Ulster County, upon a verdict convicting defendant of the crime ofrobbery in the third degree.
Defendant was indicted on one count of robbery in the first degree after he drovecodefendant Daniel P. Kerwin to a Wal-Mart store in the Town of Ulster, Ulster Countyand Kerwin stole a 32-inch television set after a brief physical altercation with one of thestore's employees. The People requested a Molineux hearing, seeking tointroduce evidence during their direct case of a second incident later that day at a nearbyKohl's store—during which defendant drove Kerwin to the store, entered with himand pointed out merchandise, then returned to the car while Kerwin stole themerchandise—to establish defendant's intent with regard to the charged Wal-Martrobbery. Following a hearing, Supreme Court granted the People's request and permittedthe admission of evidence regarding the theft at Kohl's. At the conclusion of the jurytrial, defendant was acquitted of robbery in the first degree but found guilty of the lesserincluded offense of robbery in the third degree.[FN1] The court sentenced him to 2 to 6 yearsin prison. [*2]Defendant appeals.
We affirm. Initially, defendant's challenge to Supreme Court's failure to providelimiting instructions to the jury regarding the admission of evidence concerning the theftat Kohl's is unpreserved for our review because he failed to make a specific request orobjection at trial (see People vWilson, 100 AD3d 1045, 1048 n [2012], lv denied 22 NY3d 998 [2013];People v Echavarria, 53AD3d 859, 863 [2008], lv denied 11 NY3d 832 [2008]). Although defendantdid not preserve this argument, we examine it in light of his claim that counsel's failure torequest such instructions amounted to ineffective assistance (see People vEchavarria, 53 AD3d at 863).
Evidence of uncharged crimes is inadmissible as proof of the crime charged or of apropensity to commit a particular crime, but such evidence may be admitted to show adefendant's intent, particularly where the defendant has put his or her intent at issue(see People v Wilson, 100 AD3d at 1047; People v Sudler, 75 AD3d 901, 905 [2010], lvdenied 15 NY3d 956 [2010]; People v Maye, 43 AD3d 556, 558 [2007], mod 12NY3d 731 [2009]; People vWright, 5 AD3d 873, 875 [2004], lv denied 3 NY3d 651 [2004]).Defendant was convicted of robbery in the third degree, which occurs when a personforcibly steals property (see Penal Law § 160.05). Here, defendantadmitted that he drove Kerwin to Wal-Mart and that Kerwin stole a television andbrought it back to the car in which defendant was waiting. The evidence furtherdemonstrated that, in the course of the theft, Kerwin was involved in a physicalaltercation with a Wal-Mart employee. Thus, the only issue for the jury to decide waswhether defendant possessed the requisite intent to assist in the theft when he was thedriver for Kerwin's Wal-Mart trip. Inasmuch as any limiting instruction would havedirected the jury to consider the evidence of the Kohl's robbery only as to the issue ofintent, and intent was the only relevant and contested issue that was before the jury onthis charge,[FN2]Supreme Court's failure to give such an instruction was harmless error (see People vWilson, 100 AD3d at 1048 n; People v Mosley, 55 AD3d 1371, 1372 [2008], lvdenied 11 NY3d 856 [2008]; People v Echavarria, 53 AD3d at 863;People v Wright, 5 AD3d at 876).
Under the circumstances, the failure to request limiting instructions, standing alone,did not amount to ineffective assistance of counsel because the record demonstrates thatdefendant was otherwise provided with meaningful representation (see People vEchavarria, 53 AD3d at 863-864; People v Cherry, 46 AD3d 1234, 1238 [2007], lvdenied 10 NY3d 839 [2008]). Defense counsel presented competent opening andclosing statements, effectively cross-examined witnesses, made numerous objections,many of which were sustained, and defendant was ultimately acquitted of the moreserious count of robbery in the first degree.
[*3] Defendant's remaining contentions, including his pro se argument, have beenexamined and are without merit.
Peters, P.J., Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,and matter remitted for entry of an amended uniform sentence and commitmentform.
Footnote 1:The uniform sentenceand commitment form incorrectly states that defendant was convicted of robbery in thefirst degree in County Court (Williams, J.). We remit to allow Supreme Court to amendthat form to include the proper court, judge and crime of conviction (see People v Jones, 112 AD3d991, 992 [2013]; People vFeliciano, 108 AD3d 880, 881 n 1 [2013], lv denied 22 NY3d 1040[2013]).
Footnote 2:The jury also consideredwhether defendant displayed what appeared to be a pistol or firearm, an element ofrobbery in the first degree (see Penal Law § 160.15 [4]). Becausedefendant was acquitted of that count, any lack of limiting instructions addressing intentdid not cause him harm.