PEOPLE v. MOORE (2008)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered September 29, 2005, convicting him of attempted burglary in the second degree, criminal possession of a weapon in the fourth degree, resisting arrest, and possession of burglar's tools, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The Supreme Court properly admitted evidence that the defendant was convicted of a burglary prior to the attempted burglary charged in the instant case and that he employed a similar modus operandi in each case (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286).   Such evidence was properly admitted to refute the defendant's contention, raised in defense counsel's opening statement and through defense counsel's cross-examination of the People's witnesses, that his presence at the scene of the alleged attempted burglary was entirely innocent (see People v. Wright, 5 A.D.3d 873, 875-876, 773 N.Y.S.2d 486;  People v. Veale, 169 A.D.2d 939, 939-940, 565 N.Y.S.2d 252, affd. 78 N.Y.2d 1022, 576 N.Y.S.2d 207, 582 N.E.2d 590;  cf. People v. Rojas, 97 N.Y.2d 32, 39 n. 5, 735 N.Y.S.2d 470, 760 N.E.2d 1265;  People v. Biondo, 41 N.Y.2d 483, 486, 393 N.Y.S.2d 944, 362 N.E.2d 576, cert. denied 434 U.S. 928, 98 S.Ct. 413, 54 L.Ed.2d 288).

The defendant failed to preserve for appellate review his contention that the quantity of the Molineux evidence presented to the jury was unduly prejudicial (see CPL 470.05[2];  People v. Forino, 39 A.D.3d 664, 665, 833 N.Y.S.2d 603).   In any event, any error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Lacewell, 44 A.D.3d 876, 877, 842 N.Y.S.2d 920, lv. denied 9 N.Y.3d 1035, 852 N.Y.S.2d 20, 881 N.E.2d 1207).   The defendant's challenge to the probative value of the Molineux evidence is without merit.   Upon determining that the evidence of the prior crime was legally relevant and material to the issues before it, the trial court providently exercised its discretion in determining that the probative value of the evidence of the prior crime outweighed any prejudicial effect (see People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Norman, 40 A.D.3d 1128, 1129, 837 N.Y.S.2d 694).   Additionally, the trial court properly admitted testimony from a former police officer who had detained and arrested the defendant in 1988 for the prior crime based on a description he had received of the alleged perpetrator.   Such testimony was admissible “for the relevant nonhearsay purpose of establishing the reasons behind the officer's actions, and explaining the events which precipitated the defendant's arrest” (People v. Smalls, 293 A.D.2d 500, 501, 739 N.Y.S.2d 630;  see People v. Spencer, 212 A.D.2d 645, 622 N.Y.S.2d 580).

The defendant failed to preserve for appellate review his challenges to comments the prosecutor made in her opening and closing statements regarding the prior crime (see CPL 470.05[2];  People v. Forino, 39 A.D.3d at 665, 833 N.Y.S.2d 603;  People v. Stewart, 255 A.D.2d 343, 344, 679 N.Y.S.2d 339).   In any event, any error was harmless (see People v. Mahboubian, 74 N.Y.2d 174, 191, 544 N.Y.S.2d 769, 543 N.E.2d 34;  People v. Crimmins, 36 N.Y.2d at 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787;  People v. Lacewell, 44 A.D.3d at 877, 842 N.Y.S.2d 920).