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Appellate Term, First Department: September 28, 2021

Appellate Term, First Department: September 28, 2021

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By: Edmead, P.J., Brigantti, Hagler, JJ.

16-504. THE PEOPLE OF THE STATE OF NEW YORK, res, v. STEPHEN MARTINEZ, def-app — Judgment of conviction (Gilbert C. Hong, J.), rendered June 15, 2015, affirmed. The court providently exercised its discretion in admitting evidence of one of defendant’s prior incidents of sexual misconduct on the subway (see People v. McKenzie, 169 AD3d 557, 558 [2019], lv denied 33 NY3d 1033 [2019]). The evidence was relevant to establish defendant’s intent and the lack of mistake, where the charged sexual conduct occurred on a crowded subway train (see People v. Goode, 176 AD3d 629 [2019], lv denied 34 NY3d 1159 [2020]). Even if defendant’s intent could be inferred from his behavior, the People, who had the burden of proving that element, “were not bound to stop after presenting minimum evidence” (People v. Alvino, 71 NY2d 233, 245 [1987]). We also reject defendant’s contention that the court failed to address his argument that the probative value of the evidence of his prior misconduct was outweighed by its potential for prejudice. The required balancing of probative value against prejudice was implicit in the court’s determination (see People v. Holmes, 104 AD3d 1288, 1290 [2013], lv denied 22 NY3d 1041 [2013]; People v. Meseck, 52 AD3d 948, 950 [2088], lv denied 11 NY3d 739 [2008]), which permitted evidence as to only one of defendant’s prior bad acts, not the three proffered by the People, and the limiting instruction to the jury “served to alleviate any potential prejudice resulting from the admission of the evidence” (People v. Alke, 90 AD3d 943, 944 [2011], lv denied 19 NY3d 994 [2012]). In any event, any error in the receipt of this evidence was harmless given the overwhelming evidence of defendant’s guilt (see People v. Crimmins, 36 NY2d 230, 241-242 [1975]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

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