| People v Cornelius |
| 2011 NY Slip Op 08472 [89 AD3d 595] |
| November 22, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Austin Cornelius, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Allen J. Vickey of counsel), forrespondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered June 10,2010, convicting defendant, after a jury trial, of burglary in the second degree, and sentencinghim, as a second felony offender, to a term of 10 years, unanimously modified, as a matter ofdiscretion in the interest of justice, to the extent of reducing the sentence to a term of seven years,and otherwise affirmed.
The court's Sandoval ruling was a proper exercise of discretion (see People vHayes, 97 NY2d 203 [2002]; People v Walker, 83 NY2d 455, 458-459 [1994];People v Pavao, 59 NY2d 282, 292 [1983]). The convictions at issue were highlyprobative of credibility, and the court only permitted inquiry into a small portion of defendant'sextensive criminal record (see People vColeman, 45 AD3d 432 [2007], lv denied 10 NY3d 763 [2008]).
The court's Molineux ruling (People v Molineux, 168 NY 264 [1901]) wasalso a proper exercise of discretion. The evidence of uncharged crimes was probative ofdefendant's knowledge and intent with regard to the burglary in this case, and helped establishthat defendant knew that his entry into the store was unlawful. The probative value of thisevidence outweighed any potential for prejudice, which was minimized by the court's suitablelimiting instructions.
Defendant failed to preserve his argument that the court conflated its Sandoval andMolineux determinations, or his constitutional claims regarding either issue, and wedecline to review them in the interest of justice. As an alternative holding, we also reject them onthe merits.
The trespass notices barring defendant from entering a chain of drugstores were properlyadmitted as business records and did not violate defendant's right of confrontation (see People v Cox, 63 AD3d 626,627 [2009], lv denied 13 NY3d 859 [2009]; People v Liner, 33 AD3d 479 [2006], affd 9 NY3d 856[2007]). These documents were "not created in order to memorialize witness testimony," but forbusiness purposes (Liner v Artus, 2008 WL 5114485, *4, 2008 US Dist [*2]LEXIS 98558, *10 [SD NY 2008]).
Since the court's reasonable doubt instruction cannot be viewed as expressly shifting theburden of proof, normal preservation requirements apply (see People v Thomas, 50NY2d 467, 471-472 [1980]), and we decline to review defendant's unpreserved challenge to thatinstruction in the interest of justice. As an alternative holding, we also reject it on the merits.Although it would have been the better practice to use the standard CJI instruction, the court'scharge, read as a whole, did not shift or misstate the burden of proof or expressly impose anaffirmative obligation upon jurors to articulate a basis for harboring a reasonable doubt (seePeople v Cubino, 88 NY2d 998 [1996]; People v Antommarchi, 80 NY2d 247,251-252 [1992]).
Defendant's challenge to the legal sufficiency of the evidence of physical injury isunpreserved and we decline to review it in the interest of justice. As an alternative holding, wefind that the verdict was based on legally sufficient evidence (see People v Hodge, 83 AD3d 594, 595 [2011]). We similarly findthat the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).
We find the sentence excessive to the extent indicated. Concur—Tom, J.P., Saxe,Sweeny, Richter and Manzanet-Daniels, JJ.