PEOPLE v. SABB

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

The PEOPLE of the State of New York, Respondent, v. Elmon SABB, Defendant-Appellant.

Decided: October 21, 2004

BUCKLEY, P.J., MAZZARELLI, ANDRIAS, MARLOW, CATTERSON, JJ. Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Jennifer Chung of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 3, 2002, convicting defendant, after a jury trial, of burglary in the second degree and two counts of possession of stolen property in the fourth degree, and sentencing him, as a persistent violent felony offender, to an aggregate term of 16 years to life, unanimously affirmed.

 Defendant failed to preserve his claim that the People introduced excessive and prejudicial details about his prior trespass conviction that went beyond the court's Molineux ruling, and we decline to review it in the interest of justice.   Were we to review this claim, we would find that the trespass conviction, which had led to a warning to defendant not to enter the subject premises, and the relevant surrounding facts, were properly admissible to establish essential elements of the crime of burglary and were not unduly prejudicial (see People v. Robinson, 239 A.D.2d 258, 259-260, 657 N.Y.S.2d 674 [1997] ).   Furthermore, the court delivered thorough limiting instructions that minimized the risk of prejudice.

 Defendant's constitutional challenge to the procedure under which he was sentenced as a persistent violent felony offender is unpreserved for appellate review and, in any event, is without merit (see People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844 [2001], cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160 [2001] ).   Defendant's mandatory sentence as a persistent violent felony offender was triggered solely by his prior convictions (see Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 [1998] ).

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 reject them.