PEOPLE v. SINGLETARY (2003)

 Defendant appeals from a judgment convicting him after a jury trial of, inter alia, two counts of robbery in the first degree (Penal Law § 160.15[3], [4] ) in connection with the robbery of a convenience store.   We reject defendant's contention that County Court improperly admitted evidence that the store employee who was working at the time of the robbery recognized defendant because he had purchased marijuana from defendant on two occasions within a few weeks prior to the robbery.   It is axiomatic that evidence of prior uncharged crimes that is relevant to show the identity of defendant “may not be received unless its probative value exceeds the potential for prejudice resulting to defendant” (People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808).   We conclude that the probative value of the evidence at issue outweighs any prejudice resulting to defendant.   Furthermore, the “evidence was necessary to complete the witness's narrative” (People v. Ortiz, 273 A.D.2d 482, 483, 710 N.Y.S.2d 254, lv. denied 96 N.Y.2d 737, 722 N.Y.S.2d 804, 745 N.E.2d 1027).   Defendant failed to request that the court give a curative instruction with respect to that evidence and thus failed to preserve for our review his further contention that the court's failure to do so was error (see CPL 470.05[2];  People v. Santos, 266 A.D.2d 320, 700 N.Y.S.2d 33, lv. denied 94 N.Y.2d 906, 707 N.Y.S.2d 391, 728 N.E.2d 990).   In any event, in light of the overwhelming evidence of defendant's guilt, there is no significant probability that defendant otherwise would have been acquitted and thus we conclude that any error is harmless (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  Santos, 266 A.D.2d 320, 700 N.Y.S.2d 33).   Defendant's sentence is neither unduly harsh nor severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: