The People, etc., respondent, v. Kevin Watts, appellant. (2011)

Argued—October 31, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered January 5, 2010, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In fashioning its Sandoval ruling (see People v. Sandoval, 34 N.Y.2d 371), the Supreme Court “struck an appropriate balance between the probative value of the defendant's prior crimes and the possible prejudice to the defendant” (People v. Townsend, 70 AD3d 982, 982;  see People v. Sandoval, 34 N.Y.2d 371).   A defendant is not insulated from impeachment by use of past convictions merely because those crimes are similar to the crime charged (see People v. Pavao, 59 N.Y.2d 282, 292;  People v. Aguayo, 85 AD3d 809, 810, lv denied 17 NY3d 812;  People v. Springer, 13 AD3d 657, 658).

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).   Furthermore, the Supreme Court's determination to sentence the defendant as a persistent felony offender was a provident exercise of its discretion (see Penal Law § 70.10;  People v. Ortiz, 41 AD3d 276, 276, cert denied 552 U.S. 1030;  People v. Bailey, 19 AD3d 302, 303, cert denied 547 U.S. 1045).

RIVERA, J.P., DICKERSON, ENG and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court