| People v Phipps |
| 2008 NY Slip Op 03486 [50 AD3d 929] |
| April 15, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v CraigPhipps, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Keith Dolan ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.),rendered December 6, 2005, convicting him of attempted robbery in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The trial court providently exercised its discretion in admitting into evidence testimony of a14-year-old prosecution witness who participated in the crime that she had a sexual relationshipwith the defendant and had carried guns for him. "Although not admissible to show a defendant'sgeneral criminal propensity, evidence of a defendant's past uncharged criminal behavior may beadmitted if it is relevant to a material aspect of the People's direct case, or because of somerecognized exception to the rule, such as motive, intent, mistake of fact, common scheme or plan,or the identity of the defendant" (People v Wright, 288 AD2d 409, 410 [2001]; seePeople v Alvino, 71 NY2d 233, 241 [1987]; People v Santarelli, 49 NY2d 241[1980]; People v Molineux, 168 NY 264, 293 [1901]). Here, evidence of the relationshipwas relevant to both the defendant's intent and the nature of his involvement in the crime, itsprobative value outweighed the potential prejudice to the defendant, and the court gave anappropriate limiting instruction (see People v Satiro, 72 NY2d 821, 822 [1988]; People v Clink, 32 AD3d 862, 863[2006]; People v James, 19 AD3d616, 616-617 [2005]).
The defendant's contention that the prosecutor's summation denied him due process [*2]and a fair trial is unpreserved for appellate review (see CPL470.05 [2]; People v Nieves, 2AD3d 539, 540 [2003]). In any event, a review of the challenged comments reveals that theywere either fair comment on the evidence adduced at trial or responsive to defense counsel'ssummation (see People v McHarris, 297 AD2d 824, 825 [2002]; People v Cariola,276 AD2d 800 [2000]). Rivera, J.P., Spolzino, Dillon and Balkin, JJ., concur.