| People v Westerling |
| 2008 NY Slip Op 01652 [48 AD3d 965] |
| February 28, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v Karel R.Westerling, Respondent. |
—[*1] Gwen Wilkinson, District Attorney, Ithaca (Linda Gafford of counsel), forrespondent.
Kane, J. Appeal from a judgment of the County Court of Tompkins County (Sherman, J.),rendered September 6, 2006, upon a verdict convicting defendant of the crimes of rape in the firstdegree, criminal sexual act in the first degree (two counts), kidnapping in the second degree,coercion in the first degree, criminal use of a firearm in the first degree, criminal contempt in thefirst degree (two counts) and resisting arrest.
Defendant and the victim had a stormy relationship for three years. In December 2005, afterthe victim expressed her desire to end the relationship, she agreed to talk with defendant in herdriveway. At that time, a stay-away order of protection existed in the victim's favor. The victim'smother, watching through a window at the victim's request, saw defendant grab the victim, dragher to his van and drive away. The victim's mother then called the police and reported herdaughter's abduction by defendant. The victim's trial testimony established that defendant droveher to a remote area, threatened her life with a shotgun, ordered her to undress, performed oralsex on her, demanded that she perform oral sex on him, then raped her. Soon after the sexualactivity ceased, a police officer located the van and ordered defendant to exit the vehicle.Defendant at first complied with the officer's orders, but then wrestled with the officer and fledon foot. Defendant's trial testimony explained that the victim went with him willingly and theyengaged in consensual sexual relations before the police arrived. Soon after the incident, thevictim gave a written statement to police which was similar to her trial testimony. A few weekslater, however, she provided police with a notarized statement recanting most of her [*2]prior statement. Despite this new statement, the grand jury issued a22-count indictment against defendant.
Following a trial, at which the People offered various evidence concerning defendant's priorabuse against the victim, the jury convicted him of rape in the first degree, criminal sexual act inthe first degree (two counts), kidnapping in the second degree, coercion in the first degree,criminal use of a firearm in the first degree, criminal contempt in the first degree (two counts)and resisting arrest. County Court sentenced defendant to an aggregate prison term of 12 yearswith five years of postrelease supervision. Defendant appeals.
The main issue here is County Court's Ventimiglia/Molineux ruling permitting thePeople to introduce evidence of numerous domestic violence incidents between defendant andthe victim. "Evidence of a prior uncharged crime may not be admitted solely to demonstrate adefendant's bad character or criminal propensity, but may be admissible if linked to a specificmaterial issue or fact relating to the crime charged, and if its probative value outweighs itsprejudicial impact" (People v Blair, 90 NY2d 1003, 1004-1005 [1997] [citationsomitted]; see People v Alvino, 71 NY2d 233, 241-242 [1987]). Prior bad acts in domesticviolence situations are more likely to be considered relevant and probative evidence because theaggression and bad acts are focused on one particular person, demonstrating the defendant'sintent, motive, identity and absence of mistake or accident (see People v Bierenbaum,301 AD2d 119, 150 [2002], lv denied 99 NY2d 626 [2003], cert denied 540 US821 [2003]; see also People v Laviolette, 307 AD2d 541, 542-543 [2003], lvdenied 100 NY2d 643 [2003]). Courts must determine as a matter of law whether theevidence is relevant, material and admissible under a Molineux exception or some otherbasis; after this initial determination, admissibility turns on a case-specific discretionarybalancing of probity versus prejudice (see People v Alvino, 71 NY2d at 242; People v Miles, 36 AD3d 1021,1022-1023 [2007], lv denied 8 NY3d 988 [2007]; People v Wlasiuk, 32 AD3d 674, 676-677 [2006], lvdismissed 7 NY3d 871 [2006]; see generally People v Molineux, 168 NY 264[1901]).
Most of the prior bad act evidence which the People sought to introduce meets the first prongof the test. Evidence that defendant grabbed the victim during an argument the night before theincident at issue, leaving a bruise, was relevant to the background of this incident and wasprobative of her state of mind as well as his intent. In a July 2005 incident, defendant threatenedthe victim and shot a gun. This incident led to the order of protection forming the basis of thecriminal contempt charges (see People v Rodriguez, 306 AD2d 686, 688 [2003], lvdenied 100 NY2d 624 [2003]). A September 2005 incident, where defendant violated theorder of protection, was relevant to establish defendant's knowledge of the order and its terms.Three instances where defendant threatened the victim with a gun, including the July 2005incident, and another where he threatened her with a knife were relevant and probative to showthe elements of intent and forcible compulsion (see People v Higgins, 12 AD3d 775, 778 [2004], lv denied4 NY3d 764 [2005]; People v Laviolette, 307 AD2d at 542; People v Greene, 306AD2d 639, 642 [2003], lv denied 100 NY2d 594 [2003]).
Several saved phone messages from defendant demonstrate the cyclical periods ofpossessiveness, controlling anger, threatening behavior and conciliatory kindness that heexhibited toward the victim, which helped explain her fear, recantation and belief that she wouldbe harmed if she did not accede to defendant's demands (see People v McKeehan, 2 AD3d 1421, 1422 [2003], lvdenied 3 NY3d 644 [2004]). Testimony showed that defendant damaged the victim's car bysmashing the windshield, windows and mirrors while she was inside the car, and [*3]running into it more than once. These outbursts occurred followingarguments, usually concerning the victim deciding to terminate their relationship, much like whathappened here (see People vBetters, 41 AD3d 1040, 1042 [2007]; People v Poquee, 9 AD3d 781, 782 [2004], lv denied 3NY3d 741 [2004]). An expert in domestic violence addressed the cyclical nature of relationshipswhere domestic violence occurs, a victim's fear, reasons for staying with an abuser, refusal topress charges or follow through with legal intervention, continuing to see an abuser despite anorder of protection and recanting. Defendant's focus on the victim's recantation concerning thisincident, as well as her previous recantation concerning her statement of the July 2005 incident,rendered probative not only those incidents but the controlling and abusive nature of their entirerelationship.[FN*] The background information concerning the tumultuous relationship here was necessary toadequately explain the victim's behavior in light of the domestic violence dynamic as explainedby the People's expert, defendant's intimidation of the victim, his intent and the lack of consent(see People v Gorham, 17 AD3d858, 860 [2005]; People v McKeehan, 2 AD3d at 1421-1422; People vSteinberg, 170 AD2d 50, 73-74 [1991], affd 79 NY2d 673 [1992]). This evidencewas relevant, probative and admissible under a Molineux exception.
Nevertheless, County Court went too far when it permitted the victim to testify tounparticularized acts of physical and verbal abuse that occurred over a three-year period(compare People v Doyle, 48 AD3d 961 [2008] [decided herewith]). The victimtestified that defendant hit, bit or threw her approximately 100 times during their three-yearrelationship. While some of these acts may well have been admissible upon a proper balancing oftheir probity versus their prejudice, the court did not embark on such an undertaking. Policetestimony bolstering or corroborating the victim's account of prior bad acts was prejudicial,without much probative value. Likewise, the court should have reviewed the proposed recordedtelephone messages and undertaken the same balancing test, rather than permitting all 19messages into evidence. The only evidence that County Court did not admit was testimony by thevictim's friend regarding the July 2005 incident and other generalized abuse, as such testimonywould have been cumulative. The danger of the jury determining guilt based on defendant's priorbad acts or propensity to commit domestic abuse against the victim was magnified by the court'sfailure to provide the jury with "thorough and repeated cautionary instructions" regarding thelimited purpose of such evidence as this extensive testimony was introduced (People vSteinberg, 170 AD2d at 74; seePeople v Montgomery, 22 AD3d 960, 963 [2005]; People v Greene, 306 AD2dat 642-643; see also People v Betters, 41 AD3d at 1042; People v Wright, 5 AD3d 873, 876[2004], lv denied 3 NY3d 651 [2004]; People v Fleegle, 295 AD2d 760, 762[2002]; compare People v Doyle, supra). The court's final instructions were insufficientto cure this deficiency after the jury had heard such evidence without any guidance as to itspurpose.
Most of the crimes here were not witnessed by anyone other than defendant and the victim,both of whom testified, reducing the case primarily to a battle of his word against hers. Under thecircumstances, County Court's failure to balance the proposed evidence and consider excludingany of it, along with the failure to provide limiting instructions as this prejudicial evidence wasintroduced, seriously infringed upon defendant's ability to receive a fair trial (see People vWlasiuk, 32 AD3d at 678; People v Greene, 306 AD2d at 643; People vFleegle, 295 [*4]AD2d at 762). Hence, we reverse. Given ourreversal, defendant's remaining contention is academic.
Cardona, P.J., Spain, Carpinello and Malone Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Tompkins County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Defendant first raised thevictim's recantation at his arraignment and stressed it with the jury, beginning with counsel'sopening statement (see People v Rojas, 97 NY2d 32, 38-39 [2001]).