PEOPLE v. PASTOR (2018)

Judgment, Supreme Court, New York County (Robert M. Mandelbaum, J.), rendered May 31, 2017, as amended July 26, 2017, convicting defendant, after a jury trial, of aggravated cruelty to animals and overdriving, torturing, and injuring animals, and sentencing him to an aggregate term of two years, unanimously affirmed.

Defendant's legal sufficiency claim is unpreserved and we decline to review it in the interest of justice.  As an alternative holding, we reject it on the merits.  We also find that the verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).  Moreover, we find that the evidence overwhelmingly established that defendant intentionally killed his girlfriend's dog, with aggravated cruelty (see Agriculture and Markets Law §§ 353, 353–a[1] ).  The egregious circumstances of this case are briefly summarized in our per curiam opinion disbarring defendant (Matter of Pastor, 154 A.D.3d 184, 60 N.Y.S.3d 685 [1st Dept. 2017] ).  There is no basis for disturbing the jury's credibility determinations.  The only rational explanation of the compelling circumstantial evidence is that the dog was killed by defendant, and not by his girlfriend, a stranger, or anyone else, and defendant's arguments to the contrary are without merit.

The court providently exercised its discretion in admitting, on the issues of identity and motive, evidence that defendant had previously beaten a former girlfriend's dog, and that this dog died under circumstances very similar to those of the charged crime (see e. g. People v. Walker, 293 A.D.2d 411, 411–412, 740 N.Y.S.2d 852 [1st Dept. 2002] lv denied 98 N.Y.2d 682, 746 N.Y.S.2d 472, 774 N.E.2d 237 [2002] ).  Initially, we note that there was strong circumstantial evidence that defendant actually committed the uncharged crime, and we reject his claims to the contrary.  The probative value of the uncharged crime outweighed any potential prejudice, which was minimized by the court's thorough and repeated limiting instructions.  In any event, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).

To the extent defendant is challenging portions of the prosecutor's summation, those challenges are unpreserved, and in any event unavailing.

We perceive no basis for reducing the sentence.