PEOPLE v. DAVIS

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

The PEOPLE, etc., respondent, v. Glen DAVIS, appellant.

Decided: March 22, 1999

LAWRENCE J. BRACKEN, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ. M. Sue Wycoff, New York, N.Y. (Bertrand J. Kahn of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Ruth E. Ross, and Melissa P. Eisen of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Martin, J.), rendered September 3, 1996, convicting him of assault in the second degree (two counts) and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 It is well established that evidence of uncharged crimes is inadmissible where it is offered solely to raise an inference that a defendant has a criminal propensity (see, People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808).   Such evidence, however, may be received if it is probative of a well-recognized exception (see, People v. Molineux, 168 N.Y. 264, 61 N.E. 286) or if it helps establish some element of the crime under consideration (see, People v. Alvino, supra, at 241, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Lewis, 69 N.Y.2d 321, 325, 514 N.Y.S.2d 205, 506 N.E.2d 915), and where its probative value outweighs the potential for prejudice resulting to the defendant (see, People v. Alvino, supra, at 241-242, 525 N.Y.S.2d 7, 519 N.E.2d 808).

 The defendant correctly contends that the two proffered instances of his prior physical abuse towards his mother were improperly admitted (see, People v. Molineux, 168 N.Y. 264, 294, 61 N.E. 286;  People v. Alvino, supra;  People v. Robinson, 68 N.Y.2d 541, 510 N.Y.S.2d 837, 503 N.E.2d 485).   However, the errors were harmless (see, People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787) in view of the overwhelming evidence of the defendant's guilt, including the strong corroborating testimony of two neighbors who overheard the altercation and observed the defendant holding his mother in a headlock.

MEMORANDUM BY THE COURT.

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