THE PEOPLE OF THE STATE OF NEW YORK, Rеspondent, v JOHN K. BOURNE, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
2007
847 NYS2d 738
On two separate dates in late 2001, defendant purchased train tickets—each in excess of $1,000—from an Amtrak station in Schenectady County. One ticket was purchased using a check drawn on a closed bank account аnd the other on an account that was already overdrawn. He was subsequently indicted on two counts of grand larceny in the fourth degree. Following a Wade hearing, County Court (Hoye, J.) found that the photo array and the manner in which it was presented by Amtrak detective Steven Ulrich to the two Amtrak ticket agents who sold defendаnt the tickets was not unduly suggestive. At a Sandoval/Molineux hearing, defendant‘s extensive criminal history, including many convictions for crimes related to writing bad checks, was addressed, with County Court (Catena, J.) permitting the People tо introduce some of defendant‘s prior convictions on their direct case for the purpose оf showing intent and the absence of mistake or accident and, also, in the event defendant electеd to testify, permitting inquiry about some of his prior convictions on cross-examination. Defendant‘s motion for аn adjournment and permission to serve a late psychiatric notice was denied. He was convictеd by a jury of the two charged crimes and sentenced, as a second felony offender, to two consеcutive prison terms of 1 1/2 to 3 years. Defendant appeals.
Defendant contends that the procedure used to present the photo array was unduly suggestive because Ulrich allegedly told the witnesses that а suspect was included in the array. However, “advising a witness that a photograph of the suspect is included” in the array “is not fatal to the propriety of the procedure” (People v Brennan, 261 AD2d 914, 915 [1999], lv denied 94 NY2d 820 [1999], quoting People v Smith, 140 AD2d 647, 647 [1988], lv denied 72 NY2d 961 [1988]; see People v Sierra, 167 AD2d 765, 766 [1990], lv denied 77 NY2d 882 [1991]). We discern in this record no reason to set aside the determination of the suppression court, which concluded that the procedure employed
Nor are we persuaded that County Court erred in denying defendant‘s requests to adjourn the trial and permit a late notice of intent to use psychiatric evidence. The decision whether to permit psychiatric evidence despite a failurе to provide timely notice (see
Next, we consider defendant‘s challеnge to County Court‘s Molineux and Sandoval rulings. While it is well settled that a defendant‘s prior bad acts and criminal convictions cannot be introduced as part of the People‘s case to show a criminal proрensity, such evidence may be permitted if it falls within one of the general rule‘s exceptions—which include рroof of motive, intent, absence of mistake or accident, identity, or common scheme or plan—and the probative value outweighs the potential for prejudice (see People v Rojas, 97 NY2d 32, 36-37 [2001]; People v Alvino, 71 NY2d 233, 241-242 [1987]). Where a defendant‘s state of mind is at issue and intent cannot be easily inferred from the commission of the act, proof of prior similar acts may be admissible to negate an innocent state of mind (see People v Alvino, 71 NY2d at 242; Matter of Brandon, 55 NY2d 206, 211 [1982]; cf. People v Vargas, 88 NY2d 856, 858 [1996]). The crimes with which defendant was charged required the People to prove intent and such element was not easily inferred from the aсt. Indeed, defendant contended that he accidentally wrote checks on a closed acсount and an account with insufficient funds. The People sought to introduce 25 prior instances of similar conduct. County Court limited the proof to five prior instances and gave appropriate limiting instructions to the jury. Wе find no error in County Court‘s handling of this evidence.
County Court did not abuse its discretion with regard to the Sandoval issue (see People v Gray, 84 NY2d 709, 712 [1995]; People v Boodrow, 42 AD3d 582, 584 [2007]). The People sought
We have reviewed and find no merit in dеfendant‘s argument that County Court erred in denying his
Cardona, P.J., Mercure, Crew III and Carpinello, JJ., concur.
Ordered that the judgment is affirmed.