People v Ocasio

People v Ocasio 2015 NY Slip Op 07428 Decided on October 13, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 13, 2015
Mazzarelli, J.P., Renwick, Andrias, Manzanet-Daniels, JJ.
15834 4222/10

[*1] The People of the State of New York, Respondent,

v

Eliot Ocasio, Defendant-Appellant.

Robert DiDio & Associates, Kew Gardens (Danielle Muscatello of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive

of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered September 5, 2013, convicting defendant, after a jury trial, of criminal possession of a forged instrument in the second degree and criminal impersonation in the second degree, and sentencing him to an aggregate term of one to three years, unanimously modified, in the interest of justice, to reduce the sentence to five years probation, and otherwise affirmed. The matter is remitted to Supreme Court for further proceedings pursuant to CPL 460.50(5).

The court properly exercised its discretion in admitting evidence that several months before the charged crime, defendant produced false identification as an Administration for Children's Services police officer during a traffic stop. This evidence was relevant to the contested issue of defendant's intent and knowledge when, in the charged crime, he presented similar identification, and claimed to be an ACS officer (see People v Alvino, 71 NY2d 233, 242 [1987]). Given the defense theory that defendant had no knowledge that the identification card he possessed was forged, evidence of defendant having previously displayed the same card, or a similar card, to another police officer was highly probative of his intent and knowledge (see People v Davis, 127 AD3d 614 [1st Dept 2015). The court minimized any potential prejudice by giving the jury a proper limiting instruction.

We find the sentence excessive to the extent indicated.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 13, 2015

CLERK