Opinion
2010-00395.
Decided on November 15, 2011.
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.
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.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, SHERI S. ROMAN, JJ.
DECISION ORDER
In fashioning its Sandoval ruling ( see People v Sandoval, 34 NY2d 371), 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 AD3d 982 , 982; see People v Sandoval, 34 NY2d 371). 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 NY2d 282, 292; People v Aguayo , 85 AD3d 809 , 810, lv denied 17 NY3d 812; People v Springer , 13 AD3d 657 , 658).
The defendant's contention that his adjudication as a persistent felony offender was unconstitutional pursuant to Apprendi v New Jersey ( 530 US 466) is without merit ( see People v Quinones , 12 NY3d 116 , cert deniedUS, 130 S Ct 104; People v Rivera , 5 NY3d 61 , cert denied 546 US 984; People v Rosen, 96 NY2d 329, cert denied 534 US 899). 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 AD3d 276 , 276, cert denied 552 US 1030; People v Bailey , 19 AD3d 302, 303, cert denied 547 US 1045).
RIVERA, J.P., DICKERSON, ENG and ROMAN, JJ., concur.