| People v Clarke |
| 2011 NY Slip Op 09144 [90 AD3d 777] |
| December 13, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GuyClarke, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered December 9, 2010, convicting him of sexual abuse in the first degree (two counts) andsodomy in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
At trial, the complainant was permitted to testify about an uncharged allegation of sexualabuse committed by the defendant. The complainant could not recall when the abuse happened,but testified in detail as to what had occurred. The County Court instructed the jury that it couldconsider this evidence solely for the purpose of determining a lack of mistake. Following thetrial, the defendant was convicted of sexual abuse in the first degree (two counts) and sodomy inthe second degree. We reverse and order a new trial.
As the defendant correctly contends, the County Court erred in permitting the introduction ofevidence of the uncharged allegation of sexual abuse. Although evidence of uncharged crimesmay be admitted to prove, inter alia, intent or absence of mistake (see People v Dorm, 12 NY3d 16,19 [2009]), such evidence must be excluded if it has no additional relevance to a specific issue,because there is a very real danger that the trier of fact will overestimate its significance (seePeople v Hudy, 73 NY2d 40, 55 [1988]). Here, there was no reasonable possibility that thejury would infer that the defendant's acts of sexual abuse lacked intent such that it was necessaryto prove an absence of mistake. Moreover, the defendant did not contest the element of intent oroffer mistake as a defense, but, rather, denied that he had committed the acts of abuse (seePeople v Gautier, 148 AD2d 280, 286-287 [1989]; People v Bagarozy, 132 AD2d225, 235-236 [1987]). Therefore, the probative value of the evidence of the uncharged act ofsexual abuse was outweighed by its prejudicial effect, and the County Court's limitinginstructions were untimely and insufficient to cure the prejudice caused by the erroneousadmission of this evidence (see People vAllen, 85 AD3d 1042 [2011]; People v Barbato, 82 AD3d 1112 [2011]; People v Wilkinson, 71 AD3d249, 256-257 [2010]). Furthermore, the County Court's error was not harmless (seePeople v Crimmins, 36 NY2d 230 [1975]).
Accordingly, the judgment of conviction must be reversed and a new trial ordered.[*2]
In light of our determination, the defendant's remainingcontentions either are without merit or have been rendered academic. Dillon, J.P., Angiolillo,Florio and Dickerson, JJ., concur.