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People v. Hernandez

Supreme Court of New York, First Department

June 27, 2013

The People of the State of New York, Respondent,
v.
Angela Hernandez, Defendant-Appellant.

Steven Banks, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.

Tom, J.P., Mazzarelli, Moskowitz, Gische, JJ.

Judgment, Supreme Court, New York County (Jill Konviser, J.), rendered December 7, 2010, convicting defendant, after a jury trial, of forgery in the second degree and criminal possession of forged instrument in the second degree, and sentencing her, as a second felony offender, to concurrent terms of three to six years, unanimously affirmed.

Since defendant objected to the relevance of an uncharged crime on significantly different grounds from those raised on appeal, her present claim is unpreserved (see e.g. People v Kelly, 82 A.D.3d 508, 509 [1st Dept 2011], lv denied 16 N.Y.3d 896 [2011]), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits, and we also find that the court properly exercised its discretion in receiving this evidence, because its probative value of outweighed its potential for prejudice. Given the defense theory that defendant wrote out a check from her victim's account believing that she had permission to spend his money without his prior consent, the evidence of defendant's prior act of forgery was probative of her intent and absence of mistake (see People v Alvino, 71 N.Y.2d 233, 242 [1987]). The court minimized the potential prejudice by limiting the amount of evidence that could be introduced and by way of suitable limiting instructions (see People v Versage, 48 A.D.3d 254, 255 [1st Dept 2008], lv denied 10 N.Y.3d 871 [2008]).


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