PEOPLE v. CLINK (2006)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered July 15, 2004, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's convictions stem from a robbery committed in Queens on November 2, 2002.   In an unrelated incident, the defendant was arrested in Brooklyn on November 26, 2002, when he was found in possession of a black handgun while riding in a black Honda Civic with tinted windows.   The People, asserting that the gun and the car were distinctive and were very similar to the gun and car used in the November 2, 2002, robbery, sought to elicit testimony as to the circumstances surrounding the November 26, 2002, arrest on the theory that it tended to connect the defendant to the robbery.   The Supreme Court admitted such evidence, reasoning that it fell within the “identity” exception to the Molineux rule regarding evidence of uncharged crimes (see People v. Molineux, 168 N.Y. 264, 291, 293, 61 N.E. 286).

The evidence concerning the defendant's November 26, 2002, arrest was admissible as probative of the defendant's identity as a participant in the robbery charged in this case (see People v. Gordon, 308 A.D.2d 461, 764 N.Y.S.2d 115;  People v. Powell, 107 A.D.2d 718, 484 N.Y.S.2d 75).   The Supreme Court providently exercised its discretion in determining that the probative value of the evidence outweighed the potential prejudice to the defendant (see People v. Alvino, 71 N.Y.2d 233, 242, 247, 525 N.Y.S.2d 7, 519 N.E.2d 808).   Moreover, the court properly explained to the jury the purpose for which the evidence was being introduced, and repeatedly instructed the jury not to consider such evidence as establishing the defendant's criminal propensity (see People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014;  People v. Satiro, 72 N.Y.2d 821, 530 N.Y.S.2d 539, 526 N.E.2d 30).

The prosecutor's summation comment regarding the out-of-state license plate on the defendant's car was not prejudicial to the defendant.   The defendant's remaining challenges to the prosecutor's summation are unpreserved for appellate review (see CPL 470.05[2];  People v. Campbell, 29 A.D.3d 601, 813 N.Y.S.2d 313;  People v. Woody, 9 A.D.3d 439, 440, 780 N.Y.S.2d 168) and, in any event, are without merit (see People v. Valdes, 291 A.D.2d 513, 738 N.Y.S.2d 223).

The defendant's remaining contentions are without merit.