PEOPLE v. MATUSZAK

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

PEOPLE of the State of New York, Plaintiff-Respondent, v. Jim P. MATUSZAK, Defendant-Appellant.

Decided: September 29, 2006

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, AND GREEN, JJ. Norman P. Effman, Attica, for Defendant-Appellant. Gerald L. Stout, District Attorney, Warsaw (Vincent A. Hemming of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment convicting him after a nonjury trial of sexual abuse in the first degree (Penal Law § 130.65[3] ), sexual abuse in the second degree (§ 130.60[2] ), and two counts of endangering the welfare of a child (§ 260.10[1] ).   We reject defendant's contention that County Court erred in allowing the People to introduce Molineux evidence.   The court properly concluded that evidence of defendant's 1993 conviction of sexual abuse in the second degree was relevant to the issue of defendant's intent and the absence of mistake.   Under those circumstances, its probative value outweighed its potential for prejudice (see People v. Burkett, 12 A.D.3d 1196, 1196-1197, 784 N.Y.S.2d 433, lv. denied 4 N.Y.3d 762, 792 N.Y.S.2d 5, 825 N.E.2d 137;  see generally People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59;  People v. Molineux, 168 N.Y. 264, 291-294, 61 N.E. 286).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: