| People v Drake |
| 2012 NY Slip Op 03305 [94 AD3d 1506] |
| April 27, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Robie J.Drake, Appellant. |
—[*1] Robie J. Drake, defendant-appellant pro se. Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), forrespondent.
Appeal from a judgment of the Niagara County Court (Richard C. Kloch, Sr., A.J.), renderedMay 27, 2010. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: Defendant appeals from a judgment, convicting him upon a jury verdictfollowing a retrial, of two counts of murder in the second degree (Penal Law § 125.25 [1]).Defendant was convicted in 1982 of killing two victims who were teenagers, and the judgmentwas affirmed by this Court on appeal (People v Drake, 129 AD2d 963 [1987], lvdenied 70 NY2d 799 [1987]). The United States Court of Appeals conditionally granteddefendant a writ of habeas corpus unless he was retried upon the indictment within 90 days of itsjudgment (Drake v Portuondo, 553 F3d 230, 247-248 [2nd Cir 2009]). We now reversethe judgment and grant defendant a new trial.
As a preliminary matter, we conclude that defendant waived his present contentionconcerning the alleged lack of jurisdiction of the acting Supreme Court Justice who presided overthe trial that was purportedly conducted in County Court, inasmuch as he failed to raise thatobjection in a timely manner (see Peoplev Ott, 83 AD3d 1495, 1496 [2011], lv denied 17 NY3d 808 [2011]; see generally People v Wilson, 14NY3d 895, 897 [2010]; People vDaniels, 86 AD3d 921, 922 [2011], lv denied 17 NY3d 715 [2011]).
The underlying facts are undisputed, and the sole issue at trial was defendant's intent to killthe victims. On a December night in 1981, the then-17-year-old defendant left his home armedwith two rifles and proceeded to walk to a junk yard to shoot at abandoned cars. He observed arusted vehicle, which was occupied by the victims, parked in a secluded area near the junk yard.He fired at the vehicle from a distance of no more than 15 feet, killing both occupants. Defendanttold the police that he did not see anyone in the vehicle before he fired the rifle and that hethereafter attempted to conceal the killings by moving the vehicle to another location. [*2]Defendant was observed by police officers on routine patrol whenhe was attempting to place the body of the female victim in the trunk of the vehicle, where he hadpreviously placed the body of the male victim.
We agree with defendant that the court committed reversible error in refusing to precludeevidence of an uncharged crime, i.e., defendant's alleged postmortem sexual assault on thefemale victim, in order to establish his intent to kill the victims (see generally People vVentimiglia, 52 NY2d 350, 359 [1981]). Because defendant presented expert testimonyrefuting the People's evidence that the female victim's body had been assaulted, there was a trialwithin a trial on the issue whether an uncharged crime had actually been committed (seegenerally People v Robinson, 68 NY2d 541, 549-550 [1986]). That was error. The SecondCircuit explicitly rejected the theory presented at the first trial that defendant's intent to kill thevictims was the result of a psychological syndrome known as picquerism, which the SecondCircuit referred to as a "fictive syndrome" (Drake, 553 F3d at 244). The court properlyrefused to permit any reference to that alleged syndrome at the second trial. We thereforeconclude that the evidence of the alleged uncharged crime was not "directly relevant" to thepurpose for which it was offered, i.e., defendant's intent to kill the victims, and thus should havebeen precluded (People v Cass, 18NY3d 553, 560 [2012]).
Even assuming, arguendo, that the court properly determined that the evidence was directlyrelevant to establish defendant's intent, we nevertheless conclude that the court abused itsdiscretion in determining that the probative value of the evidence outweighed its prejudicialeffect (see People v Gillyard, 13NY3d 351, 355 [2009]; cf. People vGamble, 18 NY3d 386, 397-398 [2012]). "Prejudice involves both the nature of the[uncharged] crime, for the more heinous the uncharged crime, the more likely that jurors will beswayed by it, and the difficulty faced by the defendant in seeking to rebut the inference fromwhich the uncharged crime evidence brings into play" (Robinson, 68 NY2d at 549). Here,the uncharged crime is particularly heinous, and defendant sought to rebut not only the inferencethat he intended to kill the victims if he sexually abused the body of the female victim, but healso was required to defend against the equivocal evidence that the uncharged crime was actuallycommitted. We thus conclude that the "distance of the particular [disputed] fact from the ultimateissue[ ] of the case" is too great to render the evidence of the alleged uncharged crime moreprobative than prejudicial with respect to the sole issue whether defendant intended to kill thevictims (People v Spotford, 85 NY2d 593, 597 [1995] [internal quotation marksomitted]). We further conclude that the error is not harmless (cf. Gillyard, 13 NY3d at356; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). We thereforereverse the judgment and grant a new trial. We reject defendant's remaining contentions withrespect to additional alleged Molineux errors.
We also agree with defendant's contention, raised in his pro se supplemental brief, that thecourt committed a reversible mode of proceedings error in failing to advise counsel of that part ofa jury note seeking guidance on how to proceed in the event that the jury was unable to reach aunanimous verdict on count one and, in addition, in failing to respond to that question (see People v Tabb, 13 NY3d 852,853 [2009]; see generally CPL 310.30; People v O'Rama, 78 NY2d 270, 276-277[1991]). We therefore reverse the judgment on that ground as well.
In light of our determination to grant a new trial, we have also addressed certain ofdefendant's remaining contentions in the interest of judicial economy. First, we reject defendant'scontentions with respect to the alleged errors in charging the jury. We also reject defendant'scontention that the court erred in determining that the physician who conducted the autopsies ofthe victims was not available to testify at the second trial by reason of illness or incapacity(see CPL 670.10 [1]), and thus properly allowed her testimony from the first trial to beread into the record. We reject defendant's further contention that the court abused its discretion[*3]in precluding his expert from giving certain opiniontestimony and in refusing to admit in evidence a hand-drawn diagram prepared by that witness(see People v Monk, 57 AD3d1497, 1498 [2008], lv denied 12 NY3d 785 [2009]; see generally People vCarroll, 95 NY2d 375, 385 [2000]). In light of our determination, we decline to addressdefendant's remaining contentions. Present—Scudder, P.J., Smith, Centra, Fahey andPeradotto, JJ.