PEOPLE v. STERLING (2018)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Vincent M. Del Giudice, J.), rendered May 21, 2013, convicting him of burglary in the first degree, robbery in the first degree, assault in the first degree, and criminal possession of weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

During the defendant's trial, the Supreme Court allowed the People to introduce testimony about certain uncharged crimes that occurred several days after the events at issue in this case, to prove the identity of the defendant as the perpetrator of the charged crimes.  The defendant's claim that he was deprived of a fair trial as a result thereof is without merit.

Evidence of uncharged crimes may be admissible when it is relevant to some issue other than the defendant's criminal disposition, including, but not limited to, establishing identity, and the probative value of the evidence outweighs the potential prejudice to the defendant (see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160;  People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286;  People v. Howard, 285 A.D.2d 560, 560, 728 N.Y.S.2d 492).  “The determination lies within the discretion of the trial court” (People v. Johnson, 137 A.D.3d 811, 812, 26 N.Y.S.3d 356;  see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263).  Here, contrary to the defendant's contention, the testimony at issue was relevant to and probative of the defendant's identity as the perpetrator of the crimes charged in the indictment.  The testimony detailed the circumstances that led to the discovery of the firearm used in connection with the charged crimes, which also evidenced the defendant's consciousness of guilt of those crimes, “and the trial court's limiting instructions effectively prevented any undue prejudice” (People v. Leach, 90 A.D.3d 1073, 1074, 935 N.Y.S.2d 631, affd 21 N.Y.3d 969, 971 N.Y.S.2d 234, 993 N.E.2d 1255;  see People v. Cintron, 95 N.Y.2d 329, 333, 717 N.Y.S.2d 72, 740 N.E.2d 217;  People v. Martin, 41 A.D.3d 616, 617, 838 N.Y.S.2d 166).  Therefore, the Supreme Court providently exercised its discretion in admitting the testimony at issue (see People v. Johnson, 137 A.D.3d at 812–813, 26 N.Y.S.3d 356;  People v. Wisdom, 120 A.D.3d 724, 726, 991 N.Y.S.2d 141;  People v. Leach, 90 A.D.3d at 1074, 935 N.Y.S.2d 631).

The defendant's contention that the evidence was legally insufficient to support his convictions is unpreserved for appellate review (see People v. Finger, 95 N.Y.2d 894, 895, 716 N.Y.S.2d 34, 739 N.E.2d 290;  People v. Stewart, 11 A.D.3d 568, 568, 782 N.Y.S.2d 799;  People v. Cannon, 300 A.D.2d 407, 408, 751 N.Y.S.2d 529).  In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that the evidence was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of the crimes of which he was convicted.  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

BALKIN, J.P., CHAMBERS, DUFFY and LASALLE, JJ., concur.