| People v Pittman |
| 2008 NY Slip Op 02236 [49 AD3d 1166] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v MarioPittman, Appellant. |
—[*1] Mario Pittman, defendant-appellant pro se. Frank J. Clark, District Attorney, Buffalo (Shawn P. Hennessy of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.), renderedFebruary 16, 2006. The judgment convicted defendant, upon a jury verdict, of attempted murderin the first degree, criminal possession of a weapon in the second degree and criminal possessionof a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is reversed on the law and a new trialis granted on counts two through five of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofattempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]; [b]),criminal possession of a weapon in the second degree (former § 265.03 [2]) and criminalpossession of a weapon in the third degree (§ 265.02 [1]) arising from an incident in whichdefendant fired a handgun at a police officer. Contrary to the contention of defendant, "[County]Court's determination that he was fit to proceed is supported by legally sufficient evidencepresented at the competency hearing" (People v Garrasi, 302 AD2d 981, 982 [2003],lv denied 100 NY2d 538 [2003]). Further, the court did not abuse its discretion in failing,sua sponte, to order another competency evaluation or to conduct a second hearing (seeid.; People v Moore, 203 AD2d 900 [1994], lv denied 84 NY2d 830 [1994]).Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidenceof his intent to kill with respect to the attempted murder conviction (see People v Gray,86 NY2d 10, 19 [1995]), and we reject his further contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
We agree with defendant, however, that the court erred in permitting the People to presentevidence concerning his conviction of attempted criminal possession of a weapon in the seconddegree arising from a 1998 incident in which defendant attempted to shoot a police officer. Thatevidence was not relevant under any of the Molineux exceptions cited by the People(see People v Molineux, 168 NY 264, 293-294 [1901]). Defendant's conduct in the 1998incident and the present incident was not "sufficiently unique to be probative on the issue ofidentity" (People v Beam, 57 NY2d 241, 252 [1982]), nor was the 1998 incidentprobative on the issue of motive [*2]inasmuch as there was noevidence from which the jury could infer that the 1998 incident provided the motive underlyingthe instant offenses (see generally People v Namer, 309 NY 458, 462 [1956]). Moreover,evidence of the 1998 incident should have been precluded insofar as it was used to prove intentbecause, assuming that the People established that defendant fired at the officer, "intent may beeasily inferred from the commission of the act itself" (People v Alvino, 71 NY2d 233,242 [1987]; see also People v McKinney, 24 NY2d 180, 184-185 [1969]). Evenassuming, arguendo, that evidence of the 1998 incident is probative of some issue other thandefendant's criminal propensity, we conclude that its potential for prejudice outweighed itsprobative value (see generally People v Hudy, 73 NY2d 40, 55 [1988]; People vSantarelli, 49 NY2d 241, 250 [1980], rearg denied 49 NY2d 918 [1980]). Indeed, weconclude that the evidence of the 1998 incident was, at best, "of slight value when compared tothe possible prejudice to" defendant (People v Allweiss, 48 NY2d 40, 47 [1979]), and theerror in the admission of that evidence cannot be deemed harmless (see People v Kocyla,167 AD2d 938, 939 [1990]; see generally People v Crimmins, 36 NY2d 230, 241-242[1975]).
In light of our decision, we need not address the remaining contentions of defendant,including those in the pro se supplemental brief.
All concur except Smith, J.P., who dissents and votes to affirm in the followingmemorandum.
Smith, J.P. (dissenting). I respectfully dissent because I disagree with the majority'sconclusion that County Court erred in permitting the People to introduce on their direct caseevidence of defendant's 1998 conviction of attempted criminal possession of a weapon in thesecond degree. The charges in this case arose from an incident in which defendant fired shots at apolice officer after the officer confronted defendant, and the People sought to introduce evidencethat defendant had been convicted on two prior occasions of some level of criminal possession ofa weapon following incidents in which he was confronted by police officers. In the first incident,in 1994, defendant began to draw a handgun when he was confronted by a police officer but wasarrested before he was able to do so, and he was convicted of attempted criminal possession of aweapon in the third degree later that year. In the second incident, in 1998, defendant drew ahandgun and aimed it at a police officer who confronted him. Defendant attempted to fire theweapon but it jammed, and defendant was arrested before he could take any further action. As aresult of that incident, defendant was convicted in 1998 of attempted criminal possession of aweapon in the second degree.
Although I of course agree with the majority that evidence of a defendant's prior convictionis inadmissible when it merely serves to establish the defendant's propensity to commit the crimecharged (see generally People v Molineux, 168 NY 264, 291-293 [1901]; People vSanders, 303 AD2d 694 [2003]), that is not the case here. Such evidence is admissiblewhere, as here, the defendant has a modus operandi that is sufficiently unique and thus probativeon the issue of identity, and the identity of the perpetrator is at issue (see People v Beam,57 NY2d 241, 250 [1982]; see generally People v Robinson, 68 NY2d 541, 547-548[1986]; People v Crawford, 4 AD3d748 [2004], lv denied 2 NY3d 797 [2004]). During both the 1994 and the 1998incidents that resulted in the prior convictions, defendant drew, or attempted to draw, a handgunwhen he was confronted by a police officer. In the 1998 incident, he also aimed the weapon at apolice officer and attempted to fire it. In my view, defendant's modus operandi is sufficientlyunique to be admissible on the issue of the identity (see Beam, 57 NY2d at 252-253).Contrary to defendant's further contention and the implicit conclusion of the majority, the Courtof Appeals has "explicitly stated that in order to establish a modus operandi, 'it is notnecessary that the pattern be ritualistic for it to be considered unique' " (People vMateo, 93 NY2d 327, 332 n 2 [1999], quoting Beam, 57 NY2d at 253). "[A]lthoughevidence of a defendant's prior [attempt to shoot a police officer] always carries the potential forprejudice, [here the court] observed all of the established procedural safeguards before receivingthe evidence and defendant had more than adequate prior notice that the evidence would be usedagainst him" (People v Toland, 284 AD2d 798, 805 [2001], lv denied 96 NY2d[*3]942 [2001]). Defendant's contention that the court failed toweigh the potential for prejudice against the probative value of the evidence is without meritinasmuch as the record establishes that the court denied the People's request to introduceevidence of defendant's 1994 conviction, thereby limiting the prejudice to defendant (seegenerally People v Dupree, 110 AD2d 777, 778 [1985]).
Finally, in my view the People were entitled to present evidence of the 1998 conviction ontheir direct case as an element of criminal possession of a weapon in the third degree as chargedin the indictment in this case for the additional reason that, when defendant was arraigned on thespecial information alleging that prior conviction, he denied having previously been convicted ofany crime (see Penal Law § 265.02 [1]; CPL 200.60 [3] [b]; see People vSaunders, 301 AD2d 869, 870-871 n 1 [2003], lv denied 100 NY2d 542 [2003];see also People v Dugan, 188 AD2d 927, 928 [1992], lv denied 81 NY2d 839[1993]; see generally People v Cooper, 78 NY2d 476, 480-482 [1991]). The court againlimited the prejudice to defendant by directing the People to strike any reference to the 1994conviction from the special information.
I agree with the majority's resolution of the remaining issues raised on appeal and thereforewould affirm the judgment. Present—Smith, J.P., Lunn, Peradotto, Green and Pine, JJ.