The People, etc., respondent, v. Alvin Aguayo, appellant. (2011)

Submitted—May 23, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered May 29, 2009, convicting him of attempted burglary in the second degree, criminal mischief in the third degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In ruling that, at trial, the prosecution would be permitted “limited” cross-examination of the defendant regarding two of his prior burglary convictions, the Supreme Court in this instance struck an appropriate balance “between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant's credibility on the one hand, and on the other the risk of unfair prejudice to the defendant” (People v. Sandoval, 34 N.Y.2d 371, 375;  see People v. Springer, 13 AD3d 657;  People v. Alford, 178 A.D.2d 418).   A defendant is not insulated from impeachment by use of past convictions merely because those crimes are similar to the crimes charged (see People v. Pavao, 59 N.Y.2d 282, 292;  People v. Springer, 13 AD3d at 657).

The defendant's contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v. New Jersey (530 U.S. 466) is without merit (see People v. Quinones, 12 NY3d 116, cert denied US, 130 S Ct 104;  People v. Rivera, 5 NY3d 61, cert denied 546 U.S. 984;  People v. Rosen, 96 N.Y.2d 329, cert denied 534 U.S. 899).

COVELLO, J.P., LEVENTHAL, LOTT and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court