| People v Moore |
| 2008 NY Slip Op 03483 [50 AD3d 926] |
| April 15, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v DavidMoore, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Daniel Bresnahan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.),rendered September 29, 2005, convicting him of attempted burglary in the second degree,criminal possession of a weapon in the fourth degree, resisting arrest, and possession of burglar'stools, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The Supreme Court properly admitted evidence that the defendant was convicted of aburglary prior to the attempted burglary charged in the instant case and that he employed asimilar modus operandi in each case (see People v Molineux, 168 NY 264 [1901]). Suchevidence was properly admitted to refute the defendant's contention, raised in defense counsel'sopening statement and through defense counsel's cross-examination of the People's witnesses,that his presence at the scene of the alleged attempted burglary was entirely innocent (see People v Wright, 5 AD3d 873,875-876 [2004]; People v Veale, 169 AD2d 939, 939-940 [1991], affd 78 NY2d1022 [1991]; cf. People v Rojas, 97 NY2d 32, 39 n 5 [2001]; People v Biondo,41 NY2d 483, 486 [1977], cert denied 434 US 928 [1977]).
The defendant failed to preserve for appellate review his contention that the quantity of theMolineux evidence presented to the jury was unduly prejudicial (see CPL 470.05[2]; People v Forino, 39 AD3d664, 665 [2007]). In any event, any error was harmless (see People v Crimmins, 36NY2d 230, 241-242 [1975]; People vLacewell, 44 AD3d 876, 877 [2007], lv denied 9 NY3d 1035 [2008]). Thedefendant's challenge to the probative value of the Molineux evidence is without merit.Upon [*2]determining that the evidence of the prior crime waslegally relevant and material to the issues before it, the trial court providently exercised itsdiscretion in determining that the probative value of the evidence of the prior crime outweighedany prejudicial effect (see People v Alvino, 71 NY2d 233, 242 [1987]; People v Norman, 40 AD3d 1128,1129 [2007]). Additionally, the trial court properly admitted testimony from a former policeofficer who had detained and arrested the defendant in 1988 for the prior crime based on adescription he had received of the alleged perpetrator. Such testimony was admissible "for therelevant nonhearsay purpose of establishing the reasons behind the officer's actions, andexplaining the events which precipitated the defendant's arrest" (People v Smalls, 293AD2d 500, 501 [2002]; see People v Spencer, 212 AD2d 645 [1995]).
The defendant failed to preserve for appellate review his challenges to comments theprosecutor made in her opening and closing statements regarding the prior crime (seeCPL 470.05 [2]; People v Forino, 39 AD3d at 665; People v Stewart, 255 AD2d343, 344 [1998]). In any event, any error was harmless (see People v Mahboubian, 74NY2d 174, 191 [1989]; People v Crimmins, 36 NY2d at 241-242; People vLacewell, 44 AD3d at 877). Mastro, J.P., Ritter, Carni and McCarthy, JJ., concur.