SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT
December 16, 2008
THE PEOPLE, ETC., RESPONDENT,
REGINALD GOUSSE, APPELLANT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J.), rendered September 7, 2006, convicting him of robbery in the third degree (two counts) and criminal impersonation in the first degree, upon a jury verdict, and imposing sentence.
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.
WILLIAM F. MASTRO, J.P., ANITA R. FLORIO, RANDALL T. ENG and CHERYL E. CHAMBERS, JJ.
(Ind. No. 7752/05)
DECISION & ORDER
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 crimes (see People v Ventimiglia, 52 NY2d 350; People v Molineux, 168 NY 264). 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; People v Sanabria, 266 AD2d 41; People v Delarosa, 218 AD2d 667). 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; People v Caban, 224 AD2d 705).
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; People v Molina, 241 AD2d 329; People v Wilson, 225 AD2d 642).
MASTRO, J.P., FLORIO, ENG and CHAMBERS, JJ., concur.
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