PEOPLE v. DOMENECH

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Rafael DOMENECH, Defendant-Appellant.

Decided: April 24, 2001

WILLIAMS, J.P., TOM, MAZZARELLI, LERNER and RUBIN, JJ. Mindy J. Levinson, for Respondent. Lois A. White, for Defendant-Appellant.

Judgment, Supreme Court, New York County (John Bradley, J.), rendered March 2, 1998, convicting defendant, after a jury trial, of burglary in the third degree, petit larceny and possession of burglar's tools, and sentencing him, as a second felony offender, to concurrent terms of 31/212 to 7 years, 1 year and 1 year, respectively, unanimously affirmed.

Defendant's claim as to the sufficiency of the evidence is not preserved (People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919), and we decline to review it in the interest of justice.   The verdict was not against the weight of the evidence.   There is no basis upon which to disturb the jury's determinations concerning identification and credibility.

Evidence of uncharged crimes was properly admitted because the charged and uncharged crimes shared the same distinctive modus operandi, and the probative value of the uncharged crimes testimony outweighed its prejudicial effect.   In both the charged and uncharged crimes defendant employed a particularized method of tampering with automatic teller machines in order to interfere with cash withdrawals, whereupon defendant would steal the cash that the customers had attempted to withdraw.   Moreover, the evidence established that defendant had a preference for stealing from branches of a particular bank.   Slight differences between the charged and uncharged crimes did not render the uncharged crimes inadmissible (People v. Beam, 57 N.Y.2d 241, 253, 455 N.Y.S.2d 575, 441 N.E.2d 1093).

Defendant's remaining contentions are unpreserved and we decline to review them in the interest of justice.   Were we to review these claims, we would find that they do not warrant reversal.