| People v Lewis |
| 2012 NY Slip Op 09089 [101 AD3d 1154] |
| December 26, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v ErickLewis, 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 (Del Giudice,J.), rendered September 8, 2010, as amended January 14, 2011, convicting him of attemptedcriminal sexual act in the first degree, sexual abuse in the first degree (two counts), assault in thesecond degree, rape in the first degree, criminal sexual act in the first degree (three counts),robbery in the first degree, and robbery in the third degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment, as amended, is affirmed.
The defendant was convicted of various crimes for sexually assaulting three women in theirapartment buildings in the Crown Heights section of Brooklyn over the course of an eight- monthperiod. He failed to preserve for appellate review his objection to the Supreme Court'sMolineux ruling (see People v Molineux, 168 NY 264 [1901]), which allowedthe People to argue that similar statements made by the perpetrator during the three assaultstended to show that the same person committed all three assaults and was probative of a modusoperandi (see CPL 470.05 [2]). In any event, where a defendant is tried for more than onecrime, the prosecution may argue that the overall pattern tends to prove that the same personcommitted the crimes if they share sufficiently distinctive circumstances (see People vMcRae, 276 AD2d 332 [2000]). In this case, the three incidents were sufficiently distinctiveand similar to each other as to establish a modus operandi, such that, in her summation, theprosecutor was properly permitted to comment upon the similarities (see People v Salton, 74 AD3d 997[2010]; People v Ramos, 37 AD3d740 [2007]).
The defendant contends that the Supreme Court's Sandoval ruling (see People vSandoval, 34 NY2d 371, 376 [1974]) was an improper exercise of discretion. The extent towhich the prosecution should be allowed to impeach the credibility of a defendant is a matter thatis generally left to the sound discretion of the trial court (see People v Bennette, 56 NY2d142, 146 [1982]; People v Carrasquillo, 204 AD2d 735, 735 [1994]; People vJohnston, 186 AD2d 822 [1992]). When the People seek to question a defendant about his orher commission of a prior crime which is identical or similar to the offense charged, the jurymay, improperly, consider it as evidence of the defendant's predisposition to commit the crimecharged (see People v Sandoval, 34 NY2d at 377-378). Cross-[*2]examination is not automatically precluded, however, on the groundthat the prior crime is similar to that for which the defendant is on trial (see People vHayes, 97 NY2d 203, 208 [2002]). The Supreme Court's Sandoval ruling in this caseallowed the prosecutor to ask the defendant about the facts underlying his grand larcenyconviction, involving a similar modus operandi that he employed while committing the offensesfor which he was on trial but which did not involve sexual assault, and precluded her frominquiring about prior bad acts which involved sexual assault and public lewdness. We find thatthis ruling was a provident exercise of discretion.
The defendant failed to preserve for appellate review his contention that his right to confrontadverse witnesses was violated (see CPL 470.05 [2]). The contention, is, in any event,without merit (see Williams v Illinois, 567 US —, 132 S Ct 2221 [2012]).
The sentence imposed was not excessive (see People v Farrar, 52 NY2d 302,305-306 [1981]). Mastro, J.P., Dickerson, Lott and Austin, JJ., concur.