| People v Espinal |
| 2014 NY Slip Op 08720 |
| Decided on December 11, 2014 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on December 11, 2014
Gonzalez, P.J., Tom, Friedman, Acosta, Moskowitz, JJ.
13747 143/12
v
Israel Espinal, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Marisa K. Cabrera of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Emily Farber of counsel), for respondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered March 26, 2013, as amended April 25, 2013, convicting defendant, after a jury trial, of attempted burglary in the second degree, and sentencing him, as a persistent violent felony offender, to a term of 12 years to life, unanimously affirmed.
The court properly exercised its discretion in admitting evidence of defendant's prior attempted burglary conviction as probative of his intent (see e.g. People v Patterson, 41 AD3d 169 [1st Dept 2007], lv denied 9 NY3d 925 [2007]). The probative value of the evidence outweighed its potential for prejudice. Given the defense theory that defendant did not intend to burglarize an apartment by entering through a window from a fire escape, but rather was trying to find a location to smoke marijuana, the evidence of defendant's prior act of entering an apartment through the fire escape was probative of his intent (see People v Alvino, 71 NY2d 233, 242 [1987]), and the People "were not bound to stop after presenting minimum evidence" (id. at 245). The court minimized the potential prejudice by limiting the amount of evidence that could be introduced and by way of a suitable limiting instruction.
Defendant's sentence, which was the statutory minimum for defendant's conviction, given his persistent violent felony offender status, was not unconstitutionally severe (see Rummel v Estelle, 445 US 263, 271 [1980]; People v Broadie, 37 NY2d 100, 110-111 [1975], cert denied 423 US 950 [1975]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 11, 2014
CLERK