| People v Malave |
| 2009 NY Slip Op 01529 [60 AD3d 410] |
| March 3, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Kevin Malave, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Lindsey M. Kneipper of counsel), forrespondent.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), renderedNovember 21, 2006, as amended December 4, 2006, convicting defendant, after a jury trial, ofmenacing in the first degree and six counts of criminal contempt in the first degree, andsentencing him, as a second felony offender, to an aggregate term of 4 to 8 years, unanimouslyaffirmed.
The court properly exercised its discretion in admitting evidence of the facts underlying twoof the prior orders of protection that had been issued to the victim. This evidence was relevant toelements of the crimes charged, and its probative value outweighed any prejudicial effect, whichwas minimized by the court's thorough limiting instructions. One of the trial issues was whetherdefendant's possession and display of a hammer, which remained in his waistband during theincident in question, was with criminal or innocuous intent. Accordingly, his prior use ofhousehold items against the same victim tended to show his intent rather than mere propensity,and it was also highly probative of the "reasonable fear of physical injury" element of Penal Law§ 215.51 (b) (i) (see e.g. People v Palladino, 47 AD3d 491 [2008], lv denied 10NY3d 843 [2008]; People v Garvin,37 AD3d 372 [2007], lv denied 8 NY3d 984 [2007]). The prosecutor's summationcomments properly referred to the prior incidents, not to show propensity, but rather to establishthe elements of the charged crimes. Furthermore, these remarks could not have caused anyprejudice, particularly in light of the court's final instructions to the jury.
Defendant's specific appellate arguments concerning the sufficiency of the evidence and[*2]the court's refusal to submit a lesser included offense areunpreserved and we decline to review them in the interest of justice. As an alternative holding,we also reject them on the merits. Concur—Andrias, J.P., Friedman, Buckley, Cattersonand Acosta, JJ.