| People v Cornell |
| 2013 NY Slip Op 06451 [110 AD3d 1443] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BarakCornell, Appellant. |
—[*1] David W. Foley, District Attorney, Mayville (Patrick Swanson of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered June 13, 2011. The judgment convicted defendant, upon a jury verdict, of arsonin the second degree, criminal mischief in the second degree and reckless endangermentin the first degree (three counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, arson in the second degree (Penal Law § 150.15). We agreewith defendant that County Court committed a mode of proceedings error when itresponded to a jury note off the record, in the jury room, and outside the presence ofdefendant, with no indication that defendant had waived his right to be present. CPL310.30 provides that, upon receiving a request for further instruction or information fromthe jury during deliberations, "the court must direct that the jury be returned to thecourtroom and, after notice to both the people and counsel for the defendant, and in thepresence of the defendant, must give such requested information or instruction as thecourt deems proper." It is beyond cavil that "[a] defendant has a fundamental right to bepresent at all material stages of a trial . . . [and] CPL 310.30 makes adefendant's right to be present during instructions to the jury absolute and unequivocal"(People v Mehmedi, 69 NY2d 759, 760 [1987], rearg denied 69 NY2d985 [1987]; see People v Ciaccio, 47 NY2d 431, 436-437 [1979]). The courtproperly read the jury note on the record in the presence of defendant, defense counsel,and the prosecutor, and it then obtained a clear stipulation from both attorneysconcerning the accuracy of its intended response to the jury's request for information. Wenevertheless conclude that the court committed reversible error by subsequentlyinstructing the jury off the record, in the jury room, and outside the presence of defendant(see CPL 310.30; see generally People v O'Rama, 78 NY2d 270, 276-278[1991]).
Because there must be a retrial, we deem it appropriate to address defendant'scontention that the court abused its discretion by permitting testimony concerningdefendant's prior bad acts in the days, months, and years preceding the subject arson."[A] defendant is not entitled as a matter of law to pretrial notice of the People's intentionto offer evidence pursuant to People v [*2]Molineux (168 NY 264 [1901]) or to a pretrial hearingon the admissibility of such evidence" (People v Small, 12 NY3d 732, 733 [2009]). Nevertheless,"a prosecutor seeking to introduce Molineux evidence 'should ask for a ruling outof the presence of the jury' . . . and . . . any hearing withrespect to the admissibility of such evidence should occur either before trial or, at thelatest, 'just before the witness testifies' " (id., quoting People vVentimiglia, 52 NY2d 350, 362 [1981]).
Here, that procedure was not followed. Instead, the court improperly affordeddefense counsel a standing objection with respect to testimony concerning defendant'sprior bad acts while affording the prosecutor the opportunity to ask one of the victims ofthe arson, who was defendant's neighbor, about defendant's prior bad acts over a periodas long as 10 years before the arson. It was particularly improper to allow that witness totestify that, as a result of defendant's prior bad acts, he had concerns about the safety ofhis children and pets. "It is fundamental that evidence concerning a defendant'suncharged crimes or prior misconduct is not admissible if it cannot logically beconnected to some specific material issue in the case, and tends only to demonstrate thatthe defendant was predisposed to commit the crime charged" (People v Mateo, 2NY3d 383, 437 [2004], cert denied 542 US 946 [2004]). Although defendant'sbad acts within a few days of the arson could be deemed relevant to such issues asmotive and intent, testimony concerning defendant's bad acts in the preceding weeks,months or years was irrelevant to any issue in the case and only could have prejudiceddefendant by suggesting to the jury that he was an erratic and potentially dangerousperson who had the propensity to commit the crime at issue (see generallyMolineux, 168 NY at 291-294). In view of our determination to grant a new trial, wedo not address defendant's remaining contentions. Present—Centra, J.P., Fahey,Lindley, Sconiers and Whalen, JJ.