PEOPLE v. BALAZS

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

The PEOPLE, etc., respondent, v. John BALAZS, appellant.

Decided: February 22, 1999

CORNELIUS J. O'BRIEN, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, JJ. Sharon Weintraub Dashow, Brooklyn, N.Y., for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Michael Gore of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered July 15, 1996, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Contrary to the defendant's contention, evidence of his prior conviction for robbery was properly admitted to establish his identity as the perpetrator of the instant crime, where identity was not otherwise conclusively established (see, People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261, 420 N.E.2d 59;  People v. Molineux, 168 N.Y. 264, 61 N.E. 286).   Here, a unique modus operandi was sufficiently established by evidence showing that in each crime the perpetrator posed as a pizza deliveryman using silver colored duct tape to immobilize the victims, and that the crimes occurred within one week of each other, in the same geographical location, involving victims of similar age and ethnicity (see, People v. Beam, 57 N.Y.2d 241, 455 N.Y.S.2d 575, 441 N.E.2d 1093;  People v. Christopher, 65 N.Y.2d 417, 492 N.Y.S.2d 566, 482 N.E.2d 45).   Thus, the trial court properly found that the similarity of events occurring in the crimes was probative of the defendant's identity, and this, in addition to the court's limiting instruction to the jury, outweighed any potential prejudice to the defendant (see, People v. Alvino, 71 N.Y.2d 233, 525 N.Y.S.2d 7, 519 N.E.2d 808).

 The court properly granted the People's application to take a particular witness's testimony at a conditional examination (see, CPL 660.10).   The testimony was material on the issue of identity and there was reasonable cause to believe that due to the witness's extremely poor health he would be unavailable for trial.

The defendant's remaining contentions are either unpreserved for appellate review or without merit.

MEMORANDUM BY THE COURT.

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