Opinion
2005-18 N CR.
Decided October 27, 2006.
Appeal from judgments of the District Court of Nassau County, First District (Alfred D. Cooper, Sr., J.), rendered November 15, 2004. The judgments convicted defendant, upon a jury verdict, of possession of burglar's tools and criminal trespass in the third degree.
Judgments of conviction affirmed.
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
Following a jury trial, defendant was convicted of possession of burglar's tools (Penal Law § 140.35) and criminal trespass in the third degree (Penal Law § 140.10). The People presented evidence establishing that defendant was found and arrested inside of a lot used to store vehicles impounded by the Nassau County Police Department. The lot was enclosed by a six to eight foot fence with barbed wire along the top. The gate was locked and "No Trespassing" signs were posted. At the time of his arrest for criminal trespass, defendant was in possession of a screwdriver and a motorized automobile mirror switch. An investigation at the scene revealed that the window of the vehicle next to where the defendant was arrested was open. The officer looked inside the window and observed a square hole where he believed the mirror switch came from. He placed the mirror switch in the hole and it fit perfectly. Consequently, defendant was also charged with, inter alia, possession of burglar's tools.
On appeal, defendant contends that the verdict of guilt was against the weight of the evidence. It is well settled that issues of credibility are primarily for the trier of fact, in this case the jurors, whose determination is entitled to great weight on the appeal ( see People v Garafolo, 44 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that their verdict of guilty was not against the weight of the evidence (CPL 470.15).
Defendant further contends that the court erred in admitting into evidence the motorized mirror switch as evidence of an uncharged crime. Evidence of uncharged crimes is admissible only if offered for some purpose other than to show defendant's bad character or to raise an inference that defendant has a criminal propensity ( see People v Molineux, 168 NY 264, 291-294; see also People v Lewis, 69 NY2d 321, 325). Such evidence may be received if it helps to establish some element of the crime under consideration or because of some recognized exception to the general rule ( People v Lewis, 69 NY2d 321, 325, supra). Even when admissible for such purpose, the evidence may not be received unless its probative value exceeds the potential for prejudice resulting to defendant ( People v Ely, 68 NY2d 520, 529; People v McKinney, 24 NY2d 180, 184). If the evidence of uncharged crimes is probative of legally relevant and material issues in the charges before the court and for that reason admissible as an exception to the general rule, admissibility is based on the trial court's discretionary balancing of the probative value and need for the evidence, against the potential for prejudice ( see People v Ventimiglia, 52 NY2d 350, 359; People v Allweiss, 48 NY2d 40, 47-49). Here, the evidence was admitted for the purpose of establishing that the screwdriver in defendant's possession constituted a burglar's tool in violation of Penal Law § 140.35. As such, its probative value outweighed any potential prejudice ( cf. People v Lee, 6 AD3d 751; People v Cooper, 238 AD2d 194, lv denied 90 NY2d 939).
In view of the foregoing, the judgments of conviction should be affirmed.
Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.