Calendar Date: May 1, 2017
Randolph V. Kruman Jr., Cortland, for appellant.
Stephen K. Cornwell, District Attorney, Binghamton (Peter N.
DeLucia of counsel), for respondent.
Before: McCarthy, J.P., Rose, Devine, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from a judgment of the County Court of Broome County (Smith,
J.), rendered September 26, 2014, upon a verdict convicting
defendant of the crime of burglary in the second degree.
early morning hours of April 10, 2013, the elderly victim was
awoken by noise and saw light emanating from the living room
in her apartment. She got up to investigate, turned the
lights on and saw defendant, her upstairs neighbor, holding a
flashlight and rifling through her purse. Defendant left
after being confronted by the victim, who quickly contacted
the police and discovered that money was missing from her
purse. Defendant was found at his apartment and placed under
arrest. He was thereafter charged in an indictment with
burglary in the second degree.
was in jail from April 10, 2013 onward. Several months later,
the victim was helping to clean out defendant's apartment
and found a hooded sweatshirt and flashlight associated with
the burglary itself, as well as possessions that had gone
missing from her apartment prior to the burglary, such as the
keys to her apartment. The People learned of these facts in
the days before trial and made a successful Molineux
application to present evidence of the victim's discovery
of items purloined before the burglary. In order to
demonstrate that the items found by the victim had not been
disturbed in the months since the burglary, the People
further presented proof of defendant's pretrial
confinement. Defendant was found guilty as charged by a jury
and was sentenced, as a second violent felony offender, to a
prison term of 10 years to be followed by postrelease
supervision of five years. Defendant now appeals.
affirm. Turning first to the proof of items stolen from the
victim's apartment before the charged burglary that she
found in his apartment, "[e]vidence of prior criminal
conduct or bad acts is inadmissible to establish a
defendant's criminal propensity or bad character, but may
be admitted when it is relevant to some material issue
pertaining to the charged crime and its probative value
outweighs its potential for unfair prejudice"
(People v McCommons, 143 A.D.3d 1150, 1153 ,
lv denied ___ N.Y.3d ___ [Apr. 27, 2017]; see
People v Leonard, 29 N.Y.3d 1, 3-4 ). Defendant
did not object to the Molineux ruling rendered by
County Court, which excluded some proof that the People
sought to include in their direct case, and it is doubtful
that his present claims of error are preserved for our review
(see CPL 470.05 ; People v Ebanks, 203
A.D.2d 199, 199 , lv denied 83 N.Y.2d 966');">83 N.Y.2d 966
without deciding that they are, defendant somehow entered the
victim's apartment on the night of the burglary without
using force, and his possession of items previously taken
from her apartment demonstrated that he knew how to exploit
one or more of the options for doing so. County Court
accordingly determined that defendant's possession of the
previously stolen items was relevant to establishing that he
had the opportunity and means to commit the charged crime
(see People v Jackson, 100 A.D.3d 1258, 1261 ,
lv denied 21 N.Y.3d 1005');">21 N.Y.3d 1005 ; People v De La
Cruz, 227 A.D.2d 241, 242 , lvs denied 88
N.Y.2d 983 ). County Court viewed this evidence to be
"highly probative" on the issue of opportunity and,
"[w]hile the court's ruling could have been more
explicit, " the record nevertheless reflects that
"it engaged in the requisite 'case-specific
discretionary balancing of probity versus
prejudice'" (People v Tyrell, 82 A.D.3d
1352, 1355 , lv denied 17 N.Y.3d 810');">17 N.Y.3d 810 ,
quoting People v Westerling, 48 A.D.3d 965, 966
; cf. People v Elmy, 117 A.D.3d 1183, 1187
) . Accordingly, County Court's
Molineux ruling was not an abuse of discretion.
Court did err in allowing overly detailed proof as to
defendant's absence from his apartment after the burglary
occurred. There is no doubt that some such proof was needed
to give import to what the victim found in defendant's
apartment several months after the burglary, and defendant
stated his willingness to stipulate to being absent. The
People refused and insisted on presenting, over objection,
testimony establishing not only that defendant was absent,
but that he was incarcerated. County Court abused its
discretion in allowing the testimony under these
circumstances, as "whatever probative value it conferred
was substantially outweighed by the danger that it would
unfairly prejudice the defendant or mislead the jury"
(People v Thomas, 65 A.D.3d 1170, 1172 ,
lv denied 13 N.Y.3d 942');">13 N.Y.3d 942 ; see People
v Malloy, 124 A.D.3d 1150, 1151 , lv denied 26
N.Y.3d 969 ; People v Randolph, 18 A.D.3d
1013, 1015 ). County Court minimized the error by
giving a limiting instruction to the jury and, in light of
overwhelming proof of guilt that included the victim's
testimony and the items in defendant's apartment used
during the charged burglary, we find it to be harmless
(see People v Malloy, 124 A.D.3d at 1152; cf.
People v Mitchell, 57 A.D.3d 1308, 1311 ).
McCarthy, J.P., Rose, Clark and Mulvey, JJ., concur.
that the ...