| People v Martinez |
| 2017 NY Slip Op 01714 |
| Decided on March 8, 2017 |
| Appellate Division, Second 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 March 8, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
L. PRISCILLA HALL, J.P.
ROBERT J. MILLER
FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON, JJ.
2014-06290
(Ind. No. 7155/11)
v
Anthony Martinez, appellant.
Lynn W. L. Fahey, New York, NY (David P. Greenberg of counsel), for appellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Victor Barall, and Avshalom Yotam of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Firetog, J.), rendered June 10, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Evidence of uncharged crimes is not admissible if offered only to raise an inference that a defendant is of a criminal disposition (see People v Dorm, 12 NY3d 16, 19). Nonetheless, evidence of uncharged crimes may be admitted to prove the specific crime charged when it tends to establish, inter alia, "(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; [or] (5) the identity of the person charged with the commission of the crime on trial" (People v Molineux, 168 NY 264, 293; see People v Ventimiglia, 52 NY2d 350). "[T]he decision whether to admit evidence of defendant's prior bad acts rests upon the trial court's discretionary balancing of probative value and unfair prejudice" (People v Dorm, 12 NY3d at 19).
Here, a witness's testimony that the defendant had committed a prior, uncharged crime was improperly admitted by the trial court (see People v Scaringe, 137 AD3d 1409; People v Wright, 121 AD3d 924). Nevertheless, under the circumstances of this case, the evidence was not so prejudicial as to deny the defendant a fair trial (see People v Abdul-Aleem, 133 AD3d 867), and any other error in this regard was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that any error contributed to the defendant's convictions (see People v Scaringe, 137 AD3d 1409; People v Bounds, 100 AD3d 1523; People v McCarthy, 293 AD2d 490).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
HALL, J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court