Appeal from judgments of the District Court of Nassau County, First District (Valerie Alexander, J.), rendered January 7, 2011.
People v Prelesnick (John)
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: MOLIA, J.P., NICOLAI and LaCAVA, JJ
The judgments convicted defendant, after a non-jury trial, respectively, of sexual abuse in the second degree and endangering the welfare of a child, and endangering the welfare of a child.
ORDERED that the judgments of conviction are affirmed.
Defendant was charged, in one prosecutor's information, with, among other things, sexual abuse in the second degree (Penal Law § 130.60 ) and endangering the welfare of a child (Penal Law § 260.10 ), and, in a second, with endangering the welfare of a child (Penal Law § 260.10 ), following an incident in which defendant allegedly had served alcoholic beverages to at least two females under the age of 17, and had engaged in sexual contact with one of the females who was 11 years old at the time of the incident. Prior to trial, the District Court ruled that the People could introduce evidence of two prior acts by defendant involving the 11-year-old victim that had occurred immediately before the alleged act of sexual abuse charged herein. In addition, the court allowed testimony from the 11-year-old victim's mother that her daughter had reported to her, four months after the incident, that she had been "raped." After a non-jury trial, defendant was convicted of sexual abuse in the second degree, and the two charges of endangering the welfare of a child.
In conducting an independent review of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), and according appropriate deference to the factfinder's credibility determinations, based on its particular opportunity to view the witnesses, hear their testimony, and observe their demeanor (see People v Lane, 7 NY3d 888, 890 ; People v Bleakley, 69 NY2d 490, 495 ), we find that the judgments of conviction were not against the weight of the evidence (see People v Romero, 7 NY3d 633, 642-644 ).
Evidence of uncharged crimes or bad acts is generally inadmissible to
establish a defendant's propensity to engage in criminal behavior (see
People v Molineux, 168 NY 264 ; see also People v Lewis, 69 NY2d
321, 325 ). However, exceptions exist, such as when the evidence
is relevant to a material aspect of the People's case or to establish
motive, intent, the absence of mistake or accident, a common scheme or
plan, or the identity of the defendant (see Molineux, 168 NY at 293).
In any event, the evidence may not be received unless its probative
value outweighs its potential prejudice (see People v Ely, 68 NY2d
520, 529 ). In the instant case, a review of the record reveals
that the Molineux evidence was relevant to establish defendant's
motive and to complete the narrative (see People v Till, 87 NY2d 835,
837 ; People v Iovine, 193 Misc 2d 668 [App Term, 2d & 11th Jud Dists 2002]).
Although the District Court should have expressly recited its discretionary balancing of
those factors, viewed in the context of the Molineux hearing and defense counsel's opposition
to the admission of this evidence based on its prejudicial effect, the court's proper exercise of
discretion is implicit (see People v Bradley, 83 AD3d 1444 ; People v
Meseck, 52 AD3d 948, 950 ). Furthermore, we find that the
probative value of the evidence outweighed its potential prejudice.
We have reviewed defendant's remaining contention, regarding the admission of testimony by the victim's mother concerning a prompt outcry, and find it to be without merit.
Accordingly, the judgments of conviction ...