| People v Sayers |
| 2009 NY Slip Op 05979 [64 AD3d 728] |
| July 21, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Karina Sayers, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Kristina Sapaskis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.),rendered May 11, 2007, convicting her of criminal contempt in the first degree, criminalcontempt in the second degree, and aggravated harassment in the second degree (two counts),and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and the matter is remitted to the Supreme Court, Queens County, for a new trial.
The defendant Karina Sayers was convicted of criminal contempt in the first degree, criminalcontempt in the second degree, and two counts of aggravated harassment in the second degree,arising from several incidents occurring in September and October 2006, when telephone callsallegedly were made to the complainant, threatening the complainant's life. On appeal, thedefendant contends that she was deprived of a fair trial by the cumulative effect of the improperadmission of evidence of uncharged crimes allegedly committed by her and her codefendantagainst the complainant, improper remarks by the prosecutor in his opening and closingstatements, and defective limiting instructions by the Supreme Court. We agree.
As a threshold matter, contrary to the People's argument to this Court, the defendant'scontention that the Supreme Court erred in admitting the evidence of uncharged crimes sincethey did not fall under any exception to the Molineux rule (see People vMolineux, 168 NY 264 [1901]) is preserved for appellate review (see CPL 470.05[2]; cf. People v James, 262 AD2d 500, 501 [1999]).
At the Molineux hearing, the prosecutor explained that the complainant and thecodefendant, who was then the defendant's boyfriend, had a previous relationship and had twochildren together. The People requested that they be permitted to present testimony, on theirdirect case, regarding prior incidents that had occurred on seven different occasions during 2004,2005, and 2006. This evidence included, inter alia, prior convictions of the codefendant,photographs of the complainant purportedly showing injuries she sustained after incidents in2005 and 2006, and orders of protection issued against both the defendant and the codefendantresulting from the prior incidents. Notably, of the prior incidents, all involved the complainantand the codefendant, but only [*2]the two occurring in 2006 alsoinvolved the defendant.
The People argued that evidence of the incidents was admissible to prove that both thedefendant and the codefendant had motive and intent to commit the charged crimes; to refute anyclaims of mistake or fabrication; as background information; to show a pattern of behavior ormodus operandi; and to show identity. The defendant joined in the arguments made by thecodefendant that fear of "fabrication" was not a recognized Molineux category, that theintent, absence of mistake, and modus operandi categories under Molineux wereinapplicable in this case, and that granting the People's application in full would create a series of"mini trials." In addition, the defendant expressly argued that most of the incidents the Peoplesought to elicit had nothing to do with her and that the admission of such evidence would have a"spill-over effect" adverse to her. Further, the defendant argued that, given the nature of hercurrent relationship with the codefendant, any prejudicial information about him would"absolutely" prejudice her.
The motion court concluded that it was "inadvisable to separate out the history between theparties being that there [was] a connected chain of events" leading up to the instant charges,which comprised "all one package." The court also considered whether, on balance, theprobative value of the evidence sought to be admitted outweighed its prejudicial effect; uponconcluding that it did, the court granted the People's Molineux application in its entirety.The court found that the evidence sought to be admitted was probative and relevant to the instantcharges and fit within the recognized Molineux exceptions pertaining to motive, intent,absence of mistake or accident, and common scheme or plan. The court rejected the People'sarguments regarding the application of any Molineux exception pertaining to identityand fabrication. Further, the court advised the defendant that it would instruct the jury not toconsider the evidence regarding the codefendant's prior convictions, for any reason, with respectto the defendant.
At trial, at the beginning of the People's case and immediately prior to the complainant'stestimony, the court gave the jury a limiting instruction regarding the admission of the evidenceof prior bad acts. The court characterized that evidence as pertaining to "past incidents andbackground information and things that led up to the events that are presented in this case." Thecourt then stated to the jury, "I am instructing you that I am admitting this evidence of allegedprior actions of the defendant or defendants, as the case may be, on various issues. And Iam instructing you whether or not you can consider this evidence" (emphasis added). The courtthen advised the jury that it could consider that evidence on the issues of intent, motive, and asbackground material, "[t]o explain the relationship between parties and . . . provideyou with the necessary background material to explain what led up to the alleged actions in thiscase."
At that juncture, however, immediately before the complainant testified, the court did notexpressly limit, to the case against the codefendant, the evidence of uncharged crimes regardingthe codefendant. Moreover, the court also stated, "[w]hat you are not to consider this evidenceon is, solely on the issue of propensity to commit the crime because that would beimproper" (emphasis added). No objection was made to the foregoing instruction, and the juryacknowledged that it was clear on what was said. Taken literally, the instruction, as stated, ratherthan indicating that the evidence of uncharged crimes could not, under any circumstances, beconsidered on the issue of propensity at all, gave the erroneous impression that the jurors werepermitted to consider such evidence on propensity, but not solely on propensity (see People vHudy, 73 NY2d 40, 55 [1988]). Further, it was particularly prejudicial to the defendant thatthere was no instruction prior to the admission of this evidence on the People's case limiting itsapplication to the codefendant only, so as to avoid the spill-over effect to which she had takenexception at the Molineux hearing (cf. People v Till, 87 NY2d 835, 837 [1995]).
During the presentation of the defendant's case, the court, at the defendant's request, gaveanother instruction to the jury during the cross examination of the codefendant, intending to limitthe codefendant's testimony as to the case against him, so as to avoid the spill-over effectdescribed by the defendant. The instruction fashioned by the court, however, failed to amelioratethe potential prejudice, up to that point, of the complainant's prior testimony that was adducedduring the People's case, as well as the cross examination of the codefendant that hadcommenced on the Friday of the prior week, all of which was heard by the jury before suchlimiting instruction [*3]was given. Indeed, the instruction wasnot given until the continuation of the cross examination of the codefendant was alreadyunderway on the morning of the following Monday. Moreover, the instruction as given, to wit:"consider the evidence only as it relates to each defendant and then consider the evidencethat relates to that defendant separately as to each of the defendants . . . certainevidence, what this defendant said or did, that has nothing to do with the codefendant" (emphasisadded), did not fully serve to eliminate confusion regarding the applicability of the codefendant'stestimony to the defendant's case.
Similarly, although the court, during the final charge, properly conveyed that evidence ofuncharged crimes could not be "considered for the purpose of propensity," where, as here, theevidence of the codefendant's prior bad acts permeated the trial, the latter instruction did notameliorate the potential prejudice to the defendant caused by the earlier improper instruction,which misguided the jury throughout the People's case (see e.g. People v Resek, 3 NY3d 385, 387-390 [2004]; see generally People v Kenner, 8AD3d 296, 298 [2004]). This is particularly so "in view of the questionable effectiveness ofcautionary instructions in removing prior crime evidence from" a jury's consideration, as thecourt is required to do where the potential for prejudice outweighs the probative value of suchevidence (People v Ventimiglia, 52 NY2d 350, 361-362 [1981]).
While generally, some evidence of uncharged crimes can be properly admitted asbackground material to complete the narrative to the extent that it is inextricably interwovenwith the events leading to the crimes charged and to explain the relationship among the parties(see People v Montanez, 41 NY2d 53, 58 [1976]; People v Santiago, 27 AD3d 768 [2006]; People v Jones, 9 AD3d 374, 375[2004]), " 'the introduction of such [background] evidence must be carefully monitored by thetrial judge, as it is an accommodation that the general rules of evidence must at times make to theexigencies of the particular instance. . . . Every precaution must be taken lest it spillover its barriers and distort the jury's contemplation of the determinative and critical evidence' "(People v Stanard, 32 NY2d 143, 146 [1973], quoting People v Gleason, 285App Div 278, 281-282 [1954]; see Bedell v United States, 78 F2d 358, 364 [1935],cert denied 296 US 628 [1935]).
Here, as a result of the trial court's failure to parse the testimony and instructions relating toevidence of uncharged crimes (see People v Ventimiglia, 52 NY2d at 361), theoverwhelming majority of evidence presented at trial pertained to the prior bad acts of thecodefendant, rather than the instant offenses of which the defendant was convicted. Thus, eventhough such evidence fit within recognized Molineux exceptions, such as motive andintent, and as relevant background material enabling the jury to understand the relationshipbetween the complainant and both the defendant and codefendant (see People v Timmons, 54 AD3d883, 885 [2008]; People vFarmer, 54 AD3d 871, 872 [2008]; People v Laverpool, 52 AD3d 622 [2008]; People v Howe,292 AD2d 542 [2002]), the sheer volume of such evidence which did not pertain to the defendantunduly prejudiced her (see generally People v Cook, 42 NY2d 204, 208 [1977]).Moreover, even if evidence of uncharged crimes is offered for a legitimate purpose, suchevidence must be excluded if its potential for prejudice outweighs its probative value (seePeople v Till, 87 NY2d at 836; People v Hudy, 73 NY2d at 55). As to the defendant,the prejudice was manifest and clearly outweighed its probative value (see People vMontanez, 41 NY2d at 58).
The defendant's contentions that the prosecutor made improper comments in his opening andclosing statements with respect to the evidence of uncharged crimes are largely unpreserved forappellate review (see CPL 470.05 [2]; People v McClary, 17 AD3d 699 [2005]). We nonetheless exerciseour interest of justice jurisdiction to reach those contentions, and find that the prosecutor'scomments in his opening statement that "the past demonstrates a pattern of behavior committedby these defendants," and in summation that "the past events show a pattern of behaviorthat you can decide whether or not the defendants committed a crime here," (emphasisadded) when coupled with the court's improper instructions regarding propensity, and the lack ofrelevance of the vast majority of the past events to the defendant, were unduly prejudicial to herand deprived her of a fair trial. Thus, under the particular circumstances of this case, it cannot besaid that the errors were harmless. Cumulatively, there was a significant probability that theerrors contributed to the defendant's convictions (see People v Pergya, 53 AD3d 631 [2008]; People v Silva,187 AD2d 467, 468 [1992]).
Accordingly, the judgment of conviction must be reversed and a new trial ordered. Skelos,J.P., Fisher, Miller and Eng, JJ., concur.