| People v Billups |
| 2007 NY Slip Op 09442 [45 AD3d 1176] |
| November 29, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v James Billups,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered May 8, 2006, upon a verdict convicting defendant of the crimes of burglary in thesecond degree (six counts) and criminal possession of stolen property in the third degree.
Charged with committing a series of burglaries, defendant sought to preclude testimony athis jury trial that, during interrogation, he had stated that he had previously pleaded guilty to anearlier, unrelated charge of burglary. Finding that the statement fell within the state of mind orintent exception to the rule in People v Molineux (168 NY 264, 293 [1901]), CountyCourt allowed the testimony. After the interrogating officer testified, County Court denieddefendant's motion for a mistrial, but did give the jury cautionary instructions regarding its use ofthe testimony. The jury ultimately convicted defendant of, among other things, six counts ofburglary in the second degree. Defendant appeals, and we reverse.
The Molineux rule requires that evidence of a defendant's prior bad acts or crimes beexcluded unless it is probative of a material issue other than criminal propensity and its probativevalue outweighs the risk of prejudice to the defendant (see People v Resek, 3 NY3d 385, 389-390 [2004]; People vTill, 87 NY2d 835, 836 [1995]). As is pertinent here, a defendant's state of mind and theelement of intent are recognized exceptions to the Molineux rule (see e.g. People v[*2]Sessoms, 200 AD2d 850, 851 [1994], lv denied83 NY2d 915 [1994]). In making its ruling, however, County Court erroneously focused ondefendant's state of mind during his interrogation rather than at the time he allegedly committedthe crimes charged. Intent was not truly at issue here because it could be readily inferred from theaccomplice's testimony describing defendant's participation in the series of burglaries. The issueof whether defendant had participated turned on whether the jury credited the accomplice'stestimony. Thus, the evidence of the prior conviction would only tend to establish defendant'spropensity to commit burglary and not "to negate the existence of an innocent state of mind"(Matter of Brandon, 55 NY2d 206, 211 [1982]; see People v Alvino, 71 NY2d233, 242-243 [1987]). Had County Court correctly weighed these factors, the conclusion wouldhave been that the potential prejudice of the evidence of the prior conviction far outweighed itsprobative value. "Although County Court attempted to ameliorate the prejudice to defendant vialimiting instructions to the jury, inasmuch as the prior bad act evidence here concerned crimeswhich were essentially identical to the charged offense[s], we cannot conclude that the errorherein was harmless beyond a reasonable doubt" (People v Wallace, 31 AD3d 1041, 1044 [2006] [citations omitted];see People v Simmons, 29 AD3d1219, 1221 [2006]; People vReilly, 19 AD3d 736, 737-738 [2005]).
Given our determination, we need not consider defendant's remaining contentions.
Crew III, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County for a new trial.