         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1152
KA 08-00225
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ERIC R. MULL, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Stephen R. Sirkin, A.J.), rendered December 13, 2007. The judgment
convicted defendant, upon a jury verdict, of burglary in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of burglary in the second degree (Penal Law §
140.25 [2]). Contrary to defendant’s contention, Supreme Court’s
Sandoval ruling did not constitute an abuse of discretion.
Defendant’s prior conviction of false personation pursuant to Penal
Law § 190.23 bore directly on his credibility, inasmuch as it involved
an act of individual dishonesty by him (see People v Smikle, 82 AD3d
1697, 1697, lv denied 17 NY3d 801; see generally People v Sandoval, 34
NY2d 371, 377; People v Arguinzoni, 48 AD3d 1239, 1240-1241, lv denied
10 NY3d 859), and the court did not abuse its discretion in allowing
the prosecutor to question defendant concerning the facts underlying
that conviction (see People v Thompson, 295 AD2d 917, 918, lv denied
98 NY2d 772). Although defendant contends that the court failed to
balance the probative value of defendant’s prior convictions against
their potential for undue prejudice, we note that it is well settled
that “an exercise of a trial court’s Sandoval discretion should not be
disturbed merely because the court did not provide a detailed
recitation of its underlying reasoning . . ., particularly where, as
here, the basis of the court’s decision may be inferred from the
parties’ arguments” (People v Walker, 83 NY2d 455, 459; see People v
Carter, 38 AD3d 1256, 1257, lv denied 8 NY3d 982).

     Defendant further contends that the court erred in admitting in
evidence testimony concerning defendant’s prior aggressive behavior
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                                                         KA 08-00225

toward one of the victims because it was introduced solely to
demonstrate his criminal propensity and thus was inadmissible under
People v Molineux (168 NY 264). We reject that contention. Even
assuming, arguendo, that the victim’s testimony constitutes Molineux
evidence (see generally People v Ventimiglia, 52 NY2d 350; Molineux,
168 NY 264), we conclude that such testimony was properly admitted
inasmuch as it was relevant to establish defendant’s intent and
motive, as well as to provide relevant background information, and its
probative value outweighed its prejudicial effect (see People v
Alvino, 71 NY2d 233, 241-242; People v Nelson, 57 AD3d 1441, 1442).
In any event, any error with respect to the admission of that
testimony is harmless (see generally People v Crimmins, 36 NY2d 230,
241-242).

     With respect to defendant’s further contention that he was
deprived of a fair trial by prosecutorial misconduct during summation,
defendant failed to object to several of the allegedly improper
comments, and thus his contention with respect to those comments is
unpreserved for our review (see People v Freeman, 78 AD3d 1505, lv
denied 15 NY3d 952; People v Overlee, 236 AD2d 133, 136, lv denied 91
NY2d 976). We decline to exercise our power to review his contention
with respect to the allegedly improper comments that are not preserved
for our review (see CPL 470.15 [6] [a]), and we reject defendant’s
contention with respect to the remaining allegedly improper comments.
Those comments were “ ‘either a fair response to defense counsel’s
summation or fair comment on the evidence’ ” (People v Green, 60 AD3d
1320, 1322, lv denied 12 NY3d 915; see People v Figgins, 72 AD3d 1599,
1600, lv denied 15 NY3d 893).

     Contrary to defendant’s further contention, we conclude that the
evidence is legally sufficient to support the conviction (see
generally People v Bleakley, 69 NY2d 490, 495). Viewing the evidence
in the light most favorable to the People (see People v Contes, 60
NY2d 620, 621), we conclude that there is a “ ‘valid line of reasoning
and permissible inferences from which a rational jury could have found
the elements of the crime proved beyond a reasonable doubt’ ” (People
v Danielson, 9 NY3d 342, 349; see Bleakley, 69 NY2d at 495). The jury
could have reasonably inferred that defendant intended to commit a
crime inside the victims’ residence based on the evidence of his use
of force to gain entry to the house (see People v Bergman, 70 AD3d
1494, lv denied 14 NY3d 885; People v Gates, 170 AD2d 971, lv denied
78 NY2d 922). That “ ‘inference is buttressed by numerous other
factors’ ” (Bergman, 70 AD3d at 1494), including testimony that
defendant had visited the residence a few days prior to the burglary
and that, after being told to stop entering the residence, he
continued to do so until one of the victims fired a gun in his
direction.

     Finally, viewing the evidence in light of the elements of the
crime as charged to the jury (see Danielson, 9 NY3d at 349), and
giving the appropriate deference to the jury’s credibility
determinations (see People v Hill, 74 AD3d 1782, lv denied 15 NY3d
805), we conclude that the verdict is not against the weight of the
                                 -3-                         1152
                                                        KA 08-00225

evidence (see generally Bleakley, 69 NY2d at 495).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
