| People v James |
| 2015 NY Slip Op 07681 [132 AD3d 905] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Omar James, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Nao Terai of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ThomasM. Ross, and Diana Marmur of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Balter, J.), rendered June 1, 2012, convicting him of criminal possession of a weapon inthe second degree and criminal possession of marijuana in the fourth degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
"[E]vidence of uncharged crimes is inadmissible where its purpose is only to show adefendant's bad character or propensity towards crime" (People v Morris, 21 NY3d588, 594 [2013]; see Peoplev Kims, 24 NY3d 422, 438 [2014]; People v Cass, 18 NY3d 553, 559 [2012]; People v Dorm, 12 NY3d16, 19 [2009]; People v Molineux, 168 NY 264, 293 [1901]). However," '[w]hen evidence of uncharged crimes is relevant to some issue other than thedefendant's criminal disposition, it is generally held to be admissible on the theory thatthe probative value will outweigh the potential prejudice to the accused' "(People v Morris, 21 NY3d at 594, quoting People v Allweiss, 48 NY2d40, 47 [1979]; see People v Cass, 18 NY3d at 560; People v Dorm, 12NY3d at 19).
In determining whether to admit such evidence, a court should first inquire whetherthe proponent of the evidence has identified "some material issue, other than thedefendant's criminal propensity, to which the evidence is directly relevant" and, if thisshowing is made, should then "weigh the evidence's probative value against its potentialfor undue prejudice to the defendant" (People v Cass, 18 NY3d at 560). "If theevidence has substantial probative value and is directly relevant to thepurpose—other than to show criminal propensity—for which it is offered,the probative value of the evidence outweighs the danger of prejudice and the court mayadmit the evidence" (id.; see People v Dorm, 12 NY3d at 19). Thisdetermination lies within the discretion of the trial court (see People v Morris, 21NY3d at 595; People v Dorm, 12 NY3d at 19; People v Harris, 117 AD3d847, 854 [2014]).
Here, the Supreme Court did not improvidently exercise its discretion in permittingthe People to introduce the testimony of the defendant's friend that he had purchasedmarijuana from the defendant in the past. This testimony was relevant to demonstrate thedefendant's knowledge that the bag he moved from the front to the rear of that witness'svehicle contained marijuana and [*2]that it belonged tothe defendant. The defendant's contention that the court erred in failing to give a limitinginstruction regarding this testimony is unpreserved for appellate review and, in any event,any error in this regard does not require reversal.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Cahill, 2 NY3d14, 57-58 [2003]; People v Bleakley, 69 NY2d 490, 495 [1987]). Uponreviewing the record here, we are satisfied that the verdict of guilt was not against theweight of the evidence (seePeople v Romero, 7 NY3d 633 [2006]).
The sentence imposed was not excessive (see People v Naranjo, 89 NY2d1047, 1049 [1997]; People v Suitte, 90 AD2d 80, 83 [1982]; see also People v Sheehan, 106AD3d 1112, 1113 [2013]; People v Muniz, 12 AD3d 937, 939 [2004]; People v Ward, 10 AD3d805, 807-808 [2004]; People v Hayes, 236 AD2d 738 [1997]). Hall, J.P.,Austin, Sgroi and Hinds-Radix, JJ., concur.