Opinion
2011-11-15
The PEOPLE, etc., respondent,v.Kevin WATTS, appellant.
Lynn W.L. Fahey, New York, N.Y. (Katherine A. Levine of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Jodi L. Mandel of counsel; Samuel K. Mersky on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.), rendered January 5, 2010, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
In fashioning its Sandoval ruling ( see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413), the Supreme Court “struck an appropriate balance between the probative value of the defendant's prior crimes and the possible prejudice to the defendant” ( People v. Townsend, 70 A.D.3d 982, 982, 897 N.Y.S.2d 448; see People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413). A defendant is not insulated from impeachment by use of past convictions merely because those crimes are similar to the crime charged ( see People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216; People v. Aguayo, 85 A.D.3d 809, 810, 924 N.Y.S.2d 817, lv. denied 17 N.Y.3d 812, 929 N.Y.S.2d 801, 954 N.E.2d 92; People v. Springer, 13 A.D.3d 657, 658, 787 N.Y.S.2d 386).
The defendant's contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 is without merit ( see People v. Quinones, 12 N.Y.3d 116, 879 N.Y.S.2d 1, 906 N.E.2d 1033, cert. denied ––– U.S. ––––, 130 S.Ct. 104, 175 L.Ed.2d 31; People v. Rivera, 5 N.Y.3d 61, 800 N.Y.S.2d 51, 833 N.E.2d 194, cert. denied 546 U.S. 984, 126 S.Ct. 564, 163 L.Ed.2d 473; People v. Rosen, 96 N.Y.2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844, cert. denied 534 U.S. 899, 122 S.Ct. 224, 151 L.Ed.2d 160). Furthermore, the Supreme Court's determination to sentence
the defendant as a persistent felony offender was a provident exercise of its discretion ( see Penal Law § 70.10; People v. Ortiz, 41 A.D.3d 276, 276, 836 N.Y.S.2d 877, cert. denied 552 U.S. 1030, 128 S.Ct. 631, 169 L.Ed.2d 407; People v. Bailey, 19 A.D.3d 302, 303, 798 N.Y.S.2d 406, cert. denied 547 U.S. 1045, 126 S.Ct. 1629, 164 L.Ed.2d 343).
RIVERA, J.P., DICKERSON, ENG and ROMAN, JJ., concur.