| People v Inman |
| 2017 NY Slip Op 04918 [151 AD3d 1283] |
| June 15, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Barry W.Inman, Appellant. |
Randolph V. Kruman Jr., Cortland, for appellant.
Stephen K. Cornwell, District Attorney, Binghamton (Peter N. DeLucia of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Broome County (Smith, J.),rendered September 26, 2014, upon a verdict convicting defendant of the crime of burglary in thesecond degree.
In the early morning hours of April 10, 2013, the elderly victim was awoken by noise andsaw light emanating from the living room in her apartment. She got up to investigate, turned thelights on and saw defendant, her upstairs neighbor, holding a flashlight and rifling through herpurse. Defendant left after being confronted by the victim, who quickly contacted the police anddiscovered that money was missing from her purse. Defendant was found at his apartment andplaced under arrest. He was thereafter charged in an indictment with burglary in the seconddegree.
Defendant was in jail from April 10, 2013 onward. Several months later, the victim washelping to clean out defendant's apartment and found a hooded sweatshirt and flashlightassociated with the burglary itself, as well as possessions that had gone missing from herapartment prior to the burglary, such as the keys to her apartment. The People learned of thesefacts in the days before trial and made a successful Molineux application to presentevidence of the victim's discovery of items purloined before the burglary. In order to demonstratethat the items found by the victim had not been disturbed in the months since the burglary, thePeople further presented proof of defendant's pretrial confinement. Defendant was found guiltyas charged by a jury and was sentenced, as a second violent felony offender, to a prison term of10 years to be followed by postrelease supervision of five years. Defendant nowappeals.
[*2] We affirm. Turning first to the proofof items stolen from the victim's apartment before the charged burglary that she found in hisapartment, "[e]vidence of prior criminal conduct or bad acts is inadmissible to establish adefendant's criminal propensity or bad character, but may be admitted when it is relevant to somematerial issue pertaining to the charged crime and its probative value outweighs its potential forunfair prejudice" (People vMcCommons, 143 AD3d 1150, 1153 [2016], lv denied 29 NY3d 999 [2017]; see People v Leonard, 29 NY3d 1,3-4 [2017]). Defendant did not object to the Molineux ruling rendered by County Court,which excluded some proof that the People sought to include in their direct case, and it isdoubtful that his present claims of error are preserved for our review (see CPL 470.05[2]; People v Ebanks, 203 AD2d 199, 199 [1994], lv denied 83 NY2d 966[1994]).
Assuming without deciding that they are, defendant somehow entered the victim's apartmenton the night of the burglary without using force, and his possession of items previously takenfrom her apartment demonstrated that he knew how to exploit one or more of the options fordoing so. County Court accordingly determined that defendant's possession of the previouslystolen items was relevant to establishing that he had the opportunity and means to commit thecharged crime (see People vJackson, 100 AD3d 1258, 1261 [2012], lv denied 21 NY3d 1005 [2013];People v De La Cruz, 227 AD2d 241, 242 [1996], lv denied 88 NY2d 983[1996]). County Court viewed this evidence to be "highly probative" on the issue of opportunityand, "[w]hile the court's ruling could have been more explicit," the record nevertheless reflectsthat "it engaged in the requisite 'case-specific discretionary balancing of probity versusprejudice' " (People vTyrell, 82 AD3d 1352, 1355 [2011], lv denied 17 NY3d 810 [2011], quoting People v Westerling, 48 AD3d965, 966 [2008]; cf. People vElmy, 117 AD3d 1183, 1187 [2014]).[FN*] Accordingly, County Court's Molineuxruling was not an abuse of discretion.
County Court did err in allowing overly detailed proof as to defendant's absence from hisapartment after the burglary occurred. There is no doubt that some such proof was needed to giveimport to what the victim found in defendant's apartment several months after the burglary, anddefendant stated his willingness to stipulate to being absent. The People refused and insisted onpresenting, over objection, testimony establishing not only that defendant was absent, but that hewas incarcerated. County Court abused its discretion in allowing the testimony under thesecircumstances, as "whatever probative value it conferred was substantially outweighed by thedanger that it would unfairly prejudice the defendant or mislead the jury" (People v Thomas, 65 AD3d 1170,1172 [2009], lv denied 13 NY3d 942 [2010]; see People v Malloy, 124 AD3d 1150, 1151 [2015], lvdenied 26 NY3d 969 [2015]; Peoplev Randolph, 18 AD3d 1013, 1015 [2005]). County Court minimized the error by givinga limiting instruction to the jury and, in light of overwhelming proof of guilt that included thevictim's testimony and the items in defendant's apartment used during the charged burglary, wefind it to be harmless (see People v Malloy, 124 AD3d at 1152; cf. People v Mitchell, 57 AD3d1308, 1311 [2008]).
McCarthy, J.P., Rose, Clark and Mulvey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant declined the offer ofCounty Court to give a limiting instruction to the jury as to the use of this evidence.