Opinion
570299/16
09-28-2021
The People of the State of New York, Respondent, v. Stephen Martinez, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Gilbert C. Hong, J.), rendered June 15, 2015, after a jury trial, convicting him of forcible touching, and imposing sentence.
PRESENT: Edmead, P.J., Brigantti, Hagler, JJ.
PER CURIAM.
Judgment of conviction (Gilbert C. Hong, J.), rendered June 15, 2015, affirmed.
The court providently exercised its discretion in admitting evidence of one of defendant's prior incidents of sexual misconduct on the subway (see People v McKenzie, 169 A.D.3d 557, 558 [2019], lv denied 33 N.Y.3d 1033 [2019]). The evidence was relevant to establish defendant's intent and the lack of mistake, where the charged sexual conduct occurred on a crowded subway train (see People v Goode, 176 A.D.3d 629 [2019], lv denied 34 N.Y.3d 1159 [2020]). Even if defendant's intent could be inferred from his behavior, the People, who had the burden of proving that element, "were not bound to stop after presenting minimum evidence" (People v Alvino, 71 N.Y.2d 233, 245 [1987]).
We also reject defendant's contention that the court failed to address his argument that the probative value of the evidence of his prior misconduct was outweighed by its potential for prejudice. The required balancing of probative value against prejudice was implicit in the court's determination (see People v Holmes, 104 A.D.3d 1288, 1290 [2013], lv denied 22 N.Y.3d 1041 [2013]; People v Meseck, 52 A.D.3d 948, 950 [2088], lv denied 11 N.Y.3d 739 [2008]), which permitted evidence as to only one of defendant's prior bad acts, not the three proffered by the People, and the limiting instruction to the jury "served to alleviate any potential prejudice resulting from the admission of the evidence" (People v Alke, 90 A.D.3d 943, 944 [2011], lv denied 19 N.Y.3d 994 [2012]).
In any event, any error in the receipt of this evidence was harmless given the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 N.Y.2d 230, 241-242 [1975]).