Opinion
2011-11-10
The PEOPLE of the State of New York, Respondent,v.Eric R. MULL, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of Counsel), for Defendant–Appellant. Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Timothy S. Davis of Counsel), for Defendant–Appellant.
Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of Counsel), for Respondent.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the second degree (Penal Law § 140.25[2] ). Contrary to defendant's contention, Supreme Court's Sandoval ruling did not constitute an abuse of discretion. Defendant's prior conviction of false personation pursuant to Penal Law § 190.23 bore directly on his credibility, inasmuch as it involved an act of individual dishonesty by him ( see People v. Smikle, 82 A.D.3d 1697, 1697, 919 N.Y.S.2d 672, lv. denied 17 N.Y.3d 801, 929 N.Y.S.2d 109, 952 N.E.2d 1104; see generally People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413; People v. Arguinzoni, 48 A.D.3d 1239, 1240–1241, 852 N.Y.S.2d 546, lv. denied 10 N.Y.3d 859, 860 N.Y.S.2d 485, 890 N.E.2d 248), and the court did not abuse its discretion in allowing the prosecutor to question defendant concerning the facts underlying that conviction ( see People v. Thompson, 295 A.D.2d 917, 918, 743 N.Y.S.2d 764, lv. denied 98 N.Y.2d 772, 752 N.Y.S.2d 13, 781 N.E.2d 925). Although defendant contends that the court failed to balance the probative value of defendant's prior convictions against their potential for undue prejudice, we note that it is well settled that “an exercise of a trial court's Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning ..., particularly where, as here, the basis of the court's decision may be inferred from the parties' arguments” ( People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472; see People v. Carter, 38 A.D.3d 1256, 1257, 834 N.Y.S.2d 886, lv. denied 8 N.Y.3d 982, 838 N.Y.S.2d 486, 869 N.E.2d 662).
Defendant further contends that the court erred in admitting in evidence testimony concerning defendant's prior aggressive behavior toward one of the victims because it was introduced solely to demonstrate his criminal propensity and thus was inadmissible under People v. Molineux, 168 N.Y. 264, 61 N.E. 286. We reject that contention. Even assuming, arguendo, that the victim's testimony constitutes Molineux evidence ( see generally People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59; Molineux, 168 N.Y. 264, 61 N.E. 286), we conclude that such testimony was properly admitted inasmuch as it was relevant to establish defendant's intent and motive, as well as to provide relevant background information, and its probative value outweighed its prejudicial effect ( see People v. Alvino, 71 N.Y.2d 233, 241–242, 525 N.Y.S.2d 7, 519 N.E.2d 808; People v. Nelson, 57 A.D.3d 1441, 1442, 871 N.Y.S.2d 535). In any event, any error with respect to the admission of that testimony is harmless ( see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).
With respect to defendant's further contention that he was deprived of a fair trial by prosecutorial misconduct during summation, defendant failed to object to several of the allegedly improper comments, and thus his contention with respect to those comments is unpreserved for our review ( see People v. Freeman, 78 A.D.3d 1505, 910 N.Y.S.2d 778, lv. denied 15 N.Y.3d 952, 917 N.Y.S.2d 112, 942 N.E.2d 323; People v. Overlee, 236 A.D.2d 133, 136, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724). We decline to exercise our power to
review his contention with respect to the allegedly improper comments that are not preserved for our review ( see CPL 470.15[6][a] ), and we reject defendant's contention with respect to the remaining allegedly improper comments. Those comments were “ ‘either a fair response to defense counsel's summation or fair comment on the evidence’ ” ( People v. Green, 60 A.D.3d 1320, 1322, 875 N.Y.S.2d 390, lv. denied 12 N.Y.3d 915, 884 N.Y.S.2d 696, 912 N.E.2d 1077; see People v. Figgins, 72 A.D.3d 1599, 1600, 899 N.Y.S.2d 702, lv. denied 15 N.Y.3d 893, 912 N.Y.S.2d 581, 938 N.E.2d 1016).
Contrary to defendant's further contention, we conclude that the evidence is legally sufficient to support the conviction ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Viewing the evidence in the light most favorable to the People ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we conclude that there is a “ ‘valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt’ ” ( People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1; see Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The jury could have reasonably inferred that defendant intended to commit a crime inside the victims' residence based on the evidence of his use of force to gain entry to the house ( see People v. Bergman, 70 A.D.3d 1494, 894 N.Y.S.2d 635, lv. denied 14 N.Y.3d 885, 903 N.Y.S.2d 774, 929 N.E.2d 1009; People v. Gates, 170 A.D.2d 971, 566 N.Y.S.2d 137, lv. denied 78 N.Y.2d 922, 573 N.Y.S.2d 475, 577 N.E.2d 1067). That “ ‘inference is buttressed by numerous other factors' ” ( Bergman, 70 A.D.3d at 1494, 894 N.Y.S.2d 635), including testimony that defendant had visited the residence a few days prior to the burglary and that, after being told to stop entering the residence, he continued to do so until one of the victims fired a gun in his direction.
Finally, viewing the evidence in light of the elements of the crime as charged to the jury ( see Danielson, 9 N.Y.3d at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and giving the appropriate deference to the jury's credibility determinations ( see People v. Hill, 74 A.D.3d 1782, 902 N.Y.S.2d 755, lv. denied 15 N.Y.3d 805, 908 N.Y.S.2d 165, 934 N.E.2d 899), we conclude that the verdict is not against the weight of the evidence ( see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.