People v. Marmulstein

The proof at trial included identification testimony from various persons affiliated with two businesses located in Albany, a limousine service and a deli, to whom defendant sold or gave as collateral for a loan property taken from the burglarized home. The owners of the home testified that their missing property included a jewelry collection, CDs, two TVs, a VCR and a stereo, and were able to identify the jewelry and CDs recovered by police. Defendant’s friend of 20 years, whose apartment was just doors away from the burglarized residence, testified that on the evening of June 22, 2000, he saw defendant in the vicinity and, shortly thereafter, defendant came to his apartment, where defendant had also been staying, holding a TV and VCR wrapped in a white bed sheet; when asked where he got them, defendant remarked that he had “hit the jackpot.” The testimony of another friend staying at the same apartment established that, later that night, defendant asked him for a ride so he could sell jewelry, purportedly from his grandmother. The friend gave him a ride to a limousine service the next day and, after defendant came out, he stated that he had sold some of the jewelry.

Defendant’s initial claim is that the evidence was legally insufficient to establish his identity as the perpetrator of the burglary. Viewing the evidence in a light most favorable to the People and according them the benefit of every favorable inference, we disagree, finding that a rational trier of fact could have found the essential elements of this crime beyond a reasonable doubt (see People v Bleakley, 69 NY2d 490 , 495 [1987]; People v Contes, 60 NY2d 620 , 621 [1983]).^[1] As relevant, a “person is guilty of burglary in the second degree when he [or she] knowingly enters or remains unlawfully in a building with the intent to commit a crime therein, and when . . . [t]he building is a dwelling” (Penal Law § 140.25 [2]). Here, shortly after the burglary, defendant appeared just doors away from the burglarized

Next, defendant contends that Supreme Court erred in permitting the deli manager to testify that, as collateral for a loan, defendant gave him three rings, later turned over to police and identified at trial by one of the homeowners as having been stolen from their home. Defendant argues that this constituted evidence of uncharged crimes—namely, his criminal possession of these rings^[2] —and that he was entitled to a pretrial Molineux type hearing. However, while the suppression court (Lamont, J.) in its omnibus decision granted defendant’s request for such a hearing before the trial court, and defense counsel briefly indicated at the end of the Wade hearing his intent to address this issue, there is no record evidence that defense counsel ever requested a Molineux hearing or objected to any of the testimony on this ground. Thus, these claims are unpreserved (see CPL 470.05 ^[2]). Addressing them in the interest of justice, we find no error, as the evidence of defendant’s possession of the rings stolen in this burglary was relevant and admissible regarding his identity as the perpetrator of the burglary and his criminal intent in unlawfully entering this dwelling (see Penal Law § 140.25 ^[2]; see also People v Alvino, 71 NY2d 233 , 241-242 [1987]).

We also reject defendant’s contention that Supreme Court’s charge to the jury regarding the permissible inference from recent and exclusive possession of stolen property contained an