| People v Larkins |
| 2013 NY Slip Op 05403 [108 AD3d 1210] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vRonald J. Larkins, Appellant. |
—[*1] Ronald J. Larkins, defendant-appellant pro se. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel),for respondent.
Appeal from a judgment of the Cayuga County Court (Mark H. Fandrich, A.J.),rendered December 23, 2011. The judgment convicted defendant, upon a jury verdict, ofrobbery in the first degree (three counts), criminal use of a firearm in the first degree (twocounts), criminal possession of a weapon in the second degree (two counts) and criminalpossession of a weapon in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: On appeal from a judgment convicting him following a jury trial of,inter alia, three counts of robbery in the first degree (Penal Law § 160.15 [2], [3],[4]), defendant contends that County Court's Molineux ruling constitutesreversible error. We agree.
Prior to trial, the court granted the People's motion to present Molineuxevidence for the limited purpose of proving defendant's identity (see People vMolineux, 168 NY 264, 293-294 [1901]). Pursuant to the court's ruling, the Peoplepresented evidence on their direct case that defendant was the perpetrator of an attemptedrobbery of a hotel clerk in Syracuse, Onondaga County, shortly before the crime at issueherein, i.e., the robbery of a hotel clerk in Weedsport, Cayuga County. At the time of theinstant trial, defendant had been charged with criminal conduct in Onondaga Countyincluding attempted robbery, but not tried or convicted on any of the charges there.Nevertheless, during the instant trial, the People presented the testimony of fivewitnesses who referred to defendant's alleged involvement in criminal conduct inOnondaga County and offered in evidence a video recording purportedly depictingdefendant committing the attempted gunpoint robbery there. The Molineuxevidence therefore pervaded the trial.
Inasmuch as the court rejected other grounds for admission of the Molineuxevidence and limited its ruling to evidence establishing defendant's identity, our review islimited to that ground (seePeople v Concepcion, 17 NY3d 192, 194-195 [2011]). "Before admittingevidence of other crimes to establish identity, the Trial Judge must find that bothmodus operandi and defendant's identity as the perpetrator of the other crimes areestablished by clear and convincing evidence" (Prince, Richardson on Evidence §4-514 [Farrell 11th ed]; see People v Robinson, 68 NY2d 541, 548 [1986]).Here, the record establishes that the court ruled that the evidence of defendant's identitywith respect to the attempted robbery would be admissible as a matter of law, but did notdetermine the relevancy of the identification evidence of the attempted robbery, nor did itproperly balance its prejudicial effect as against its probative value (see People vChaney, 298 AD2d 617, 618-619 [2002], lv dismissed in part and denied inpart 100 NY2d 537 [2003]; see generally People v Alvino, 71 NY2d 233,242 [1987]). Additionally, there is no indication in the record that the court found thatthe modus operandi and defendant's identity as the perpetrator of the attemptedrobbery were established by clear and convincing evidence. We thus conclude that thecase before the jury became a prohibited "trial within a trial" (Robinson, 68NY2d at 550; see People vDrake, 94 AD3d 1506, 1508 [2012], lv denied 20 NY3d 1010 [2013]).We further conclude that the evidence of the attempted robbery was "sufficientlyprejudicial so as to deprive defendant of a fair trial" (People v Ortiz, 156 AD2d77, 79 [1990], lv denied 76 NY2d 793 [1990]; see generally People vLewis, 69 NY2d 321, 328 [1987]). We therefore conclude that defendant is entitledto a new trial.
Contrary to defendant's further contentions in his main brief, the evidence presentedat trial, without the inadmissible identification evidence, is legally sufficient to supportthe conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]) and,viewing the properly admitted evidence in light of the elements of the crimes as chargedto the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). In view ofour determination to grant a new trial, we do not address defendant's remainingcontentions in his main and pro se supplemental briefs. Present—Centra, J.P.,Peradotto, Sconiers, Valentino and Whalen, JJ.