| People v Ross |
| 2007 NY Slip Op 07250 [43 AD3d 1434] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Rahad Ross,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Jessica Birkahn of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered July 15, 2003. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a jury trial, ofmurder in the second degree (Penal Law § 125.25 [1]) and assault in the second degree(§ 120.05 [2]). The sole contention of defendant on appeal is that he was denied a fair trialbecause, following a Molineux/Ventimiglia hearing, Supreme Court determined that awitness would be permitted to testify that she recognized defendant because she had confrontedhim approximately one year earlier, when he was selling drugs in front of her house. Because thetestimony was probative of a "legally relevant and material issue before the [jury]" (People vAlvino, 71 NY2d 233, 242 [1987]), i.e., the identity of the person who shot the two victims,we conclude that the evidence falls within a recognized exception to the rule prohibiting theadmission of evidence of prior crimes (see generally People v Resek, 3 NY3d 385, 390 [2004]). Wefurther conclude that the court did not abuse its discretion in determining that the probative valueof the evidence outweighed its prejudicial effect (see generally People v Patterson, 13 AD3d 1138, 1139-1140[2004], lv denied 4 NY3d 801 [2005]). We note in any event that the court minimized theprejudicial effect of the testimony by instructing the jury that the testimony was to be consideredonly with respect to how the witness was able to recognize defendant and was not to beconsidered as evidence of a propensity to commit the crimes charged (see generally People v Garcia, 33AD3d 1050, 1051, lv denied 9 NY3d 844 [2007]). Present—Scudder, P.J.,Hurlbutt, Lunn, Fahey and Pine, JJ.