Opinion
Submitted January 11, 2001.
February 13, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rappaport, J.), rendered January 27, 1995, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
M. Sue Wycoff, New York, N.Y. (Robert Budner of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Minerva John-Stull of counsel), for respondent.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
It is well established that evidence of uncharged crimes is inadmissible where it is offered solely to raise an inference that a defendant has a criminal propensity (see, People v. Alvino, 71 N.Y.2d 233, 241). Such evidence, however, may be received, "if it helps to establish some element of the crime under consideration or is relevant because of some recognized exception to the general rule" (People v. Alvino, supra, at 241; see, People v. Lewis, 69 N.Y.2d 321, 325; People v. Molineux, 168 N.Y. 264), and where its probative value outweighs the potential for prejudice to the defendant (see, People v. Alvino, supra, at 241-42).
Contrary to the defendant's contention, evidence of a prior uncharged crime in which he robbed a woman on the subway and attempted to push her onto the subway tracks was properly admitted to establish his identity as the perpetrator of the instant crime (see, People v. Ventimiglia, 52 N.Y.2d 350; People v. Molineux, supra). Here, a unique modus operandi was sufficiently established (see, People v. Robinson, 68 N.Y.2d 541; People v. Beam, 57 N.Y.2d 241, 250; People v. Balazs, 258 A.D.2d 658; People v. Jason, 190 A.D.2d 689), and the Supreme Court properly found that the similarity between both crimes was probative of the defendant's identity. Given the court's limiting instructions, the probative value of this evidence outweighed the potential prejudice to the defendant (see, People v. Alvino, supra).