The People of the State of New York, Respondent, v. Livingston Clark, Defendant-Appellant.

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

The People of the State of New York, Respondent, v. Livingston Clark, Defendant-Appellant.

3265

Decided: September 28, 2010

Gonzalez, P.J., Andrias, Acosta, Renwick, Abdus-Salaam, JJ. Hughes Hubbard & Reed LLP, New York (Stephan E. Hornung of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Brian E. Rodkey of counsel), for respondent.

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Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered February 11, 2009, convicting defendant, after a jury trial, of burglary in the second degree, and sentencing him, as a second felony offender, to a term of 5 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 348-349 [2007] ).   There is no basis for disturbing the jury's credibility determinations.   The element of identity was established by a compelling chain of circumstantial evidence.   The location where defendant left his palm print strongly indicated that he left it at the time of the burglary, rather than on another occasion (see e. g. People v. Texeira, 32 AD3d 756 [2006], lv denied 7 NY3d 904 [2006] ).   Additional evidence supported the conviction, including defendant's suspicious behavior at the scene several days before the crime, and his statements to the police that both evinced a consciousness of guilt and circumstantially linked him to the crime.   Furthermore, there was ample evidence to establish defendant's unlawful entry into a building with intent to commit a crime.

The court's Sandoval ruling, which permitted only a very limited inquiry into defendant's extensive criminal background, balanced the appropriate factors and was a proper exercise of discretion (see People v. Hayes, 97 N.Y.2d 203 [2002];  People v. Walker, 83 N.Y.2d 455, 458-459 [1994] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK