Opinion
2558.
Decided December 23, 2003.
Judgment, Supreme Court, New York County (Arlene Silverman, J.), rendered April 2, 2002, convicting defendant, after a jury trial, of burglary in the second degree, criminal trespass in the second degree and possession of burglar's tools, and sentencing him, as a second violent felony offender, to concurrent terms of 9 years, 1 year and 1 year, respectively, unanimously affirmed.
Susan Gliner, for Respondent.
Lisa Joy Robertson, for Defendant-Appellant.
Before: Buckley, P.J., Sullivan, Ellerin, Williams, Gonzalez, JJ.
Charged with committing two apartment building burglaries, defendant was convicted of burglary in the second degree as to one and criminal trespass in the second degree as to the other. The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Furthermore, we find the evidence as to each of the charges to be overwhelming. In one incident, the conclusion is inescapable that defendant entered a building and stole a bicycle ( see generally People v. Galbo, 218 N.Y. 283). In the other incident, the witness made a reliable identification which was corroborated by defendant's spontaneous statement made upon his recognition of the witness.
In its supplemental instruction, the court should not have told the jury that it could consider the evidence of defendant's alleged burglary in the second building to establish his intent to commit a crime inside the first building, since the evidence did not warrant such an instruction ( see People v. Molineux, 168 N.Y. 264). However, the error was harmless in light of the overwhelming evidence supporting each of the crimes of which defendant was convicted ( see People v. Crimmins, 36 N.Y.2d 230, 242), and the fact that defendant was acquitted of burglary with respect to the first building.
The court's Sandoval ruling balanced the appropriate factors and was a proper exercise of discretion ( see People v. Hayes, 97 N.Y.2d 203; People v. Walker, 83 N.Y.2d 455, 458-459; People v. Pavao, 59 N.Y.2d 282, 292). Defendant's theft-related convictions were highly relevant to his credibility.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.