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People v. Pauling

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 16, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JOHN PAULING, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered January 10, 2006, convicting defendant, after a jury trial, of burglary in the second degree, criminal impersonation in the second degree and petit larceny, and sentencing him, as a second felony offender, to an aggregate term of 6 years, unanimously affirmed.

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.

Andrias, J.P., Nardelli, Sweeney, DeGrasse, Freedman, JJ.

2218/05

In this case where defendant was accused of acting in concert with two other men in a burglary where all three men impersonated police officers and displayed what appeared to be police shields, the court properly exercised its discretion when it admitted evidence that, approximately six months after the crime, the police recovered a total of three purported police shields from the car and apartment of a separately tried co-defendant. Although the burglary victim was not asked to identify these shields, the evidence supported a reasonable inference that they were used in the burglary, and any question as to the identity of the shields went to the weight to be accorded the evidence, not its admissibility (see People v Mirenda 23 NY2d 439, 452-454 [1969]; People v Del Vermo, 192 NY 470, 478-482 [1908]; People v Smith, 265 AD2d 175 [1999], lv denied 95 NY2d 938 [2000]). To the extent that defendant is raising a constitutional claim, such claim is both unpreserved and without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081216

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