People v. Gousse

57 A.D.3d 800, 868 N.Y.2d 911

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2008
• Status: Published

Opinion

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 crimes (see People v Ventimiglia, 52 NY2d 350 [1981]; People v Molineux, 168 NY 264 [1901]). Here, a unique modus operandi was sufficiently established, and the Supreme Court properly found that the similarity between the crimes was probative of the defendant’s identity (see People v Gousse, 43 AD3d 958 [2007]; People v Sanabria, 266 AD2d 41 [1999]; People v Delarosa, 218 AD2d 667 [1995]). Given the court’s limiting instructions, the probative value of this evidence outweighed the potential prejudice to the defendant (see People v Balazs, 258 AD2d 658 [1999]; People v Caban, 224 AD2d 705 [1996]).

The defendant’s contention that the evidence that he planned to rob a drug seller was improperly admitted because it was not sufficiently similar to the instant crimes is both waived and unpreserved for appellate review (see CPL 470.05 [2]; People v Molina, 241 AD2d 329 [1997]; People v Wilson, 225 AD2d 642 [1996]). Mastro, J.E, Florio, Eng and Chambers, JJ., concur.