People v. Aguayo

• Decision Date: 07 June 2011
• Parties: The PEOPLE, etc., respondent,v.Alvin AGUAYO, appellant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 809

924 N.Y.S.2d 817

2011 N.Y. Slip Op. 05083

The PEOPLE, etc., respondent,

v.Alvin AGUAYO, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 7, 2011.

OPINION TEXT STARTS HERELynn W.L. Fahey, New York, N.Y. (Reyna E. Marder of counsel), for appellant.Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, and David Korngold of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mangano, Jr., J.), rendered May 29, 2009, convicting him of attempted burglary in the second degree, criminal mischief in the third degree, and possession of burglar's tools, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

In ruling that, at trial, the prosecution would be permitted “limited” cross-examination of the defendant regarding two of his prior burglary convictions, the Supreme Court in this instance struck an appropriate balance “between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant's credibility on the one hand, and on the other the risk of unfair prejudice to the defendant” ( People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 314 N.E.2d 413; see People v. Springer, 13 A.D.3d 657, 787 N.Y.S.2d 386; People v. Alford, 178 A.D.2d 418, 577 N.Y.S.2d 288). A defendant is not insulated from impeachment by use of past convictions merely because those crimes are similar to the crimes charged ( see People v. Pavao, 59 N.Y.2d 282, 292, 464 N.Y.S.2d 458, 451 N.E.2d 216; People v. Springer, 13 A.D.3d at 657, 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).

COVELLO, J.P., LEVENTHAL, LOTT and MILLER, JJ., concur.