| People v Mull |
| 2011 NY Slip Op 08015 [89 AD3d 1445] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Eric R. Mull,Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered December 13, 2007. The judgment convicted defendant, upon a jury verdict, of burglary inthe second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary inthe second degree (Penal Law § 140.25 [2]). Contrary to defendant's contention, SupremeCourt's Sandoval ruling did not constitute an abuse of discretion. Defendant's prior convictionof false personation pursuant to Penal Law § 190.23 bore directly on his credibility, inasmuch asit involved an act of individual dishonesty by him (see People v Smikle, 82 AD3d 1697, 1697 [2011], lv denied17 NY3d 801 [2011]; see generally People v Sandoval, 34 NY2d 371, 377 [1974]; People v Arguinzoni, 48 AD3d 1239,1240-1241 [2008], lv denied 10 NY3d 859 [2008]), and the court did not abuse its discretionin allowing the prosecutor to question defendant concerning the facts underlying that conviction (seePeople v Thompson, 295 AD2d 917, 918 [2002], lv denied 98 NY2d 772 [2002]).Although defendant contends that the court failed to balance the probative value of defendant's priorconvictions against their potential for undue prejudice, we note that it is well settled that "an exercise ofa trial court's Sandoval discretion should not be disturbed merely because the court did notprovide a detailed recitation of its underlying reasoning . . . , particularly where, as here,the basis of the court's decision may be inferred from the parties' arguments" (People v Walker,83 NY2d 455, 459 [1994]; see People vCarter, 38 AD3d 1256, 1257 [2007], lv denied 8 NY3d 982 [2007]).
Defendant further contends that the court erred in admitting in evidence testimony concerningdefendant's prior aggressive behavior toward one of the victims because it was introduced solely todemonstrate his criminal propensity and thus was inadmissible under People v Molineux (168NY 264 [1901]). We reject that contention. Even assuming, arguendo, that the victim's testimonyconstitutes Molineux evidence (see generally People v Ventimiglia, 52 NY2d 350[1981]; Molineux, 168 NY 264), we conclude that such testimony was properly admittedinasmuch as it was relevant to establish defendant's intent and motive, as well as to provide relevantbackground information, and its probative value outweighed its prejudicial effect (see People v[*2]Alvino, 71 NY2d 233, 241-242 [1987]; People v Nelson, 57 AD3d 1441,1442 [2008]). In any event, any error with respect to the admission of that testimony is harmless(see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).
With respect to defendant's further contention that he was deprived of a fair trial by prosecutorialmisconduct during summation, defendant failed to object to several of the allegedly impropercomments, and thus his contention with respect to those comments is unpreserved for our review (see People v Freeman, 78 AD3d 1505[2010], lv denied 15 NY3d 952 [2010]; People v Overlee, 236 AD2d 133, 136[1997], lv denied 91 NY2d 976 [1998]). We decline to exercise our power to review hiscontention with respect to the allegedly improper comments that are not preserved for our review(see CPL 470.15 [6] [a]), and we reject defendant's contention with respect to the remainingallegedly improper comments. Those comments were " 'either a fair response to defense counsel'ssummation or fair comment on the evidence' " (People v Green, 60 AD3d 1320, 1322 [2009], lv denied 12NY3d 915 [2009]; see People v Figgins,72 AD3d 1599, 1600 [2010], lv denied 15 NY3d 893 [2010]).
Contrary to defendant's further contention, we conclude that the evidence is legally sufficient tosupport the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Viewingthe evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620,621 [1983]), we conclude that there is a " 'valid line of reasoning and permissible inferences from whicha rational jury could have found the elements of the crime proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d 342, 349[2007]; see Bleakley, 69 NY2d at 495). The jury could have reasonably inferred thatdefendant intended to commit a crime inside the victims' residence based on the evidence of his use offorce to gain entry to the house (see People vBergman, 70 AD3d 1494 [2010], lv denied 14 NY3d 885 [2010]; People vGates, 170 AD2d 971 [1991], lv denied 78 NY2d 922 [1991]). That " 'inference isbuttressed by numerous other factors' " (Bergman, 70 AD3d at 1494), including testimony thatdefendant had visited the residence a few days prior to the burglary and that, after being told to stopentering the residence, he continued to do so until one of the victims fired a gun in his direction.
Finally, viewing the evidence in light of the elements of the crime as charged to the jury (seeDanielson, 9 NY3d at 349), and giving the appropriate deference to the jury's credibilitydeterminations (see People v Hill, 74AD3d 1782 [2010], lv denied 15 NY3d 805 [2010]), we conclude that the verdict is notagainst the weight of the evidence (see generally Bleakley, 69 NY2d at 495).Present—Peradotto, J.P., Carni, Lindley, Sconiers and Green, JJ.