| People v Buskey |
| 2007 NY Slip Op 09440 [45 AD3d 1170] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Buskey,Appellant. |
—[*1] Andrew J. Wylie, District Attorney, Plattsburgh, for respondent.
Spain, J. Appeal from a judgment of the County Court of Clinton County (McGill, J.),rendered November 10, 2005, upon a verdict convicting defendant of the crimes of sexual abusein the first degree and endangering the welfare of a child (three counts).
Defendant's convictions are based on three instances where he allegedly made sexualadvances toward the 13-year-old victim. The record evidence establishes that defendant is a manin his mid-50s who regularly "h[u]ng out" with young teenagers, supplying them with cigarettesand welcoming them into the trailer where he resided. In January 2005, the victim and two of heryoung teenage friends went to defendant's residence with plans to spend the night. The victimdescribed the first incident as occurring in the afternoon, while she was playing cards withdefendant—nicknamed "Dad" by his young guests—and her friends. Noticing astain on her shirt, she got up to go and change. The victim testified that when she entered thehallway, defendant approached her from behind, grabbed her wrist, backed her up against thewall and kissed her, open mouthed, on the mouth. He then placed his hand between her legs andrubbed her through her clothing. When one of defendant's sons entered the hallway, defendant letthe victim go. The victim immediately told her two friends what had transpired, one of whomtestified at trial and confirmed that the victim, appearing shocked, had come in and told them that"Dad" had just kissed her; that "he stuck his tongue down [her] throat."
The second incident described by the victim occurred later that evening or early the [*2]following morning after she had fallen asleep on the couch in theliving room where one of her friends and defendant were also sleeping. She awoke to finddefendant sitting next to her on the couch, rubbing her thigh. He then kissed her and proceeded topull down her pajama pants and underwear, and to rub her genitalia with his hand. He ceasedafter the victim repeatedly told him to stop. The victim then got up, left the living room and wentback to sleep on the floor of defendant's son's room.
The third incident occurred some weeks later when the victim and some of her friendsdecided to go to a roller skating rink; they called defendant and requested a ride. During thedrive, the victim sat in the front seat between defendant and one of his sons. The victim testifiedthat defendant placed his hand on her inner thigh, and evidence was admitted that, during thecourse of the 15 minute drive, he moved his hand up along her thigh until he was touching herbetween her legs. Two of her friends, riding in the back seat, corroborated the victim's testimony.Shortly thereafter, one of the victim's friends reported this incident, and the two prior incidents,to the victim's mother, who contacted the police.
Defendant was subsequently indicted on two counts of sexual abuse in the first degree, onecount of sexual abuse in the second degree and three counts of endangering the welfare of achild. After a pretrial Molineux/Ventimiglia hearing, County Court ruled, among otherthings, that the People—as part of their direct case—could introduce evidence thatdefendant had made sexual advances toward three other young teenage girls as evidence of acommon scheme or plan and to demonstrate lack of mistake and motive. Defendant did nottestify at the trial and the jury convicted him of one count of sexual abuse in the first degreebased upon the incident in the hallway, and three counts of endangering the welfare of a child. Hewas sentenced to an aggregate prison term of seven years, with five years of postreleasesupervision. Defendant now appeals.
Turning to defendant's arguments which, if meritorious, would entitle him to dismissal of thefirst count of the indictment—charging sexual abuse in the first degree based upon theincident in the hallway—we note that defendant failed to preserve his challenge to thelegal sufficiency of the evidence with respect to that conviction as his limited motion to dismissat trial did not address that count (seePeople v Alvarez, 38 AD3d 930, 934 [2007], lv denied 8 NY3d 981 [2007]).Further, we find unpersuasive defendant's argument on appeal that the sexual abuse in the firstdegree conviction was against the weight of the record evidence.
We do, however, conclude that the evidence of uncharged crimes against the three otherteenagers was improperly introduced at trial entitling defendant to a new trial. "Evidence ofsimilar uncharged crimes has probative value, but as a general rule it is excluded for policyreasons because it may induce the jury to base a finding of guilt on collateral matters or toconvict a defendant because of his past" (People v Alvino, 71 NY2d 233, 241 [1987][citations omitted]; see People v Vargas, 88 NY2d 856, 858 [1996]; People vMcKinney, 24 NY2d 180, 184 [1969]). Although recognized exceptions exist permitting theadmission of prior uncharged crimes under certain circumstances (see People vMolineux, 168 NY 264, 293 [1901]), even where, as a matter of law, the evidence of othercrimes is probative of a legally relevant and material issue, "admissibility turns on thediscretionary balancing of the probative value and the need for the evidence against the potentialfor delay, surprise and prejudice" (People v Alvino, 71 NY2d at 242).
Over defendant's objection, the People were permitted to introduce evidence, not as [*3]rebuttal evidence but on their direct case, that defendant hadtouched and kissed another young teenage girl on several occasions, had kissed yet another younggirl and attempted to kiss a third, all at his home where, like the victim, the girls had come tosocialize with friends. The evidence was admitted as probative of a common scheme or plan,lack of mistake and motive. The common scheme or plan exception acknowledged inMolineux recognizes that evidence of uncharged crimes may be relevant "to establish ascheme 'embracing the commission of two or more crimes so related to each other that proof ofone tends to establish the others' " (People v Simmons, 29 AD3d 1219, 1220 [2006], quotingPeople v Molineux, 168 NY at 293). Notably, "a modus operandi alone is not acommon scheme; it is only a repetitive pattern" (People v Fiore, 34 NY2d 81, 87 [1974];see People v Toland, 284 AD2d 798, 803-804 [2001] [modus operandi evidence may beadmissible where necessary to establish identity of the perpetrator], lv denied 96 NY2d942 [2001]). Moreover, "it is impermissible to offer proof of uncharged crimes committedpursuant to a common plan unless the uncharged crimes support the inference that there exists asingle inseparable plan encompassing both the charged and uncharged crimes, typically, but notexclusively, embracing uncharged crimes committed in order to effect the primary crime forwhich the accused has been indicted" (People v Fiore, 34 NY2d at 85).
Here, the evidence that defendant made advances to other girls in the same manner as theconduct for which he was charged establishes only a "repetitive pattern," not a common schemeor plan within the meaning of the Molineux exception. Proof that defendant kissed otheryoung invitees to his home in no way establishes that he committed the acts charged here (seePeople v Hudy, 73 NY2d 40, 54-56 [1988], abrogated on other grounds by Carmell vTexas, 529 US 513 [2000]; cf.People v Athanasatos, 40 AD3d 1263, 1265 [2007] [prior conviction involving nearlyidentical larceny admissible to show individual manifestations of a general plan], lvdenied 9 NY3d 872 [2007]). Distinguishable are those cases where we have held prioruncharged sexual crimes admissible to demonstrate forcible compulsion and provide necessarybackground regarding a defendant's relationship with the victim, i.e., to explain the victim'sbehavior and her submission to abuse (see People v Higgins, 12 AD3d 775, 778 [2004], lv denied4 NY3d 764 [2005]; People v Laviolette, 307 AD2d 541, 542-543 [2003], lvdenied 100 NY2d 643 [2003]; People v Greene, 306 AD2d 639, 642 [2003], lvdenied 100 NY2d 594 [2003]; People v Watson, 281 AD2d 691, 693-694 [2001],lv denied 96 NY2d 925 [2001]).
Indeed, here, no evidence was proffered that the victim was aware of defendant's allegedconduct toward the other girls; thus, it could not be relevant to her mental state or behavior. Theonly probative value of the evidence—"that, because defendant had engaged in sexualmisconduct with others, he was likely to have committed the acts charged"—is preciselythe type of propensity evidence which is prohibited (People v Vargas, 88 NY2d at 858;see People v Hudy, 73 NY2d at 56 [improper to introduce evidence of prior sexualmisconduct when it tended to show only that "if defendant did it once . . . he woulddo it again"]; People v Lewis, 69 NY2d 321, 325 [1987] [rejecting testimony of prior actsto prove "amorous design"]; cf. People v Paige, 289 AD2d 872, 874 [2001] [evidenceproperly admitted that the defendant supplied youths with alcohol and drugs admissible todemonstrate that the prior bad acts were part of a plan to commit sexual crimes against minors],lv denied 97 NY2d 759 [2002]).
Nor, on this record, was the evidence of uncharged crimes necessary to show intent orabsence of mistake. The evidence was introduced as part of the People's case-in-chief, and not inresponse to any specific defense theory (cf. People v De Vito, 21 AD3d 696, 699 [2005]). Just as "evidenceof prior misconduct to prove intent is unnecessary where intent may be easily inferred from thecommission of the act itself" (People v Vargas, 88 NY2d at 858), here defendant's [*4]motive and purpose can be readily gleaned from the actions forwhich he was charged. Thus, any probative value to the evidence that defendant committed suchsimilar crimes against three other victims is far outweighed by its obvious prejudice to defendantand there is a real danger that the jury used this evidence to draw the impermissible inference(see People v Jackson, 136 AD2d 866, 866 [1988]).
Further, we cannot say on this record that the evidence that three other young girls wereassaulted in the same manner as the victim is harmless error (see People v Hudy, 73NY2d at 56; People v Lewis, 69 NY2d at 328; People v Singh, 186 AD2d 285,288 [1992]; People v Jackson, 136 AD2d at 866-867). Indeed, given the critical nature ofthe victim's testimony and her credibility to the People's case, defendant's alleged assaults againstthree other girls tended only to prove defendant's criminal propensity and threatened to "eclipsethe reason for the trial, i.e., the crimes with which defendant is charged" (People v Gorghan, 13 AD3d 908,911 [2004], lv dismissed 4 NY3d 798 [2005]).
Defendant's remaining arguments on appeal are rendered academic by our holding that he isentitled to a new trial.
Mercure, J.P., Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Clinton County for a new trial.