PEOPLE v. APONTE

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

The PEOPLE, etc., Respondent, v. Jesus APONTE, Appellant.

Decided: July 27, 1998

Before BRACKEN, J.P., and THOMPSON, SULLIVAN and PIZZUTO, JJ. M. Sue Wycoff, New York, N.Y. (Paul Wiener of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Blair Winston of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (O'Dwyer, J.), rendered October 29, 1996, convicting him of burglary in the third degree, criminal mischief in the fourth degree, criminal possession of stolen property in the fifth degree, and petit larceny, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 The trial court's Sandoval ruling was not an improvident exercise of discretion (see, People v. Mattiace, 77 N.Y.2d 269, 275-276, 567 N.Y.S.2d 384, 568 N.E.2d 1189;  People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216).   The mere fact that a defendant has committed crimes similar to the one charged does not automatically preclude the prosecutor from using evidence of such crimes for impeachment purposes (see, People v. Mattiace, supra;  People v. Pavao, supra;  People v. McClam, 225 A.D.2d 799, 639 N.Y.S.2d 854).

 Moreover, the trial court did not err by refusing to charge the jury on identification as there was no issue presented as to identification (see, People v. Reedy, 126 A.D.2d 681, 511 N.Y.S.2d 105).   The defendant was apprehended immediately after the burglary a few feet from the store and in possession of goods stolen from the store.

MEMORANDUM BY THE COURT.

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