| People v Harris |
| 2014 NY Slip Op 03532 [117 AD3d 847] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dupree Harris, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant,and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove andMorgan J. Dennehy of counsel; Jesse Oppenheim on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Demarest, J.), rendered March 17, 2005, convicting him of bribing a witness (threecounts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant stands convicted of three counts of bribing a witness for conductaimed at convincing three teenage girls to recant their statements identifying his brother,Wesley Sykes, as the man who shot and killed Dennis Brown in a park in Brooklyn. Theprimary issue raised on appeal is whether the trial court's evidentiary rulings, whichpermitted the prosecution to offer evidence that a fourth eyewitness to the Brownshooting, Bobby Gibson, was murdered the weekend before he was scheduled to testifyagainst Sykes, deprived the defendant of a fair trial. We conclude that the defendant wasnot deprived of a fair trial and, accordingly, affirm.
The evidence presented at the defendant's trial reveals that on the evening ofSeptember 4, 2001, Sykes rode his bicycle into a park in the Bedford-Stuyvesant sectionof Brooklyn, exchanged a few words with Brown, and fired several shots at him. OnSeptember 27, 2001, Brown died of the injuries he suffered in the shooting. A number ofBrown's friends were in the park and witnessed the shooting, including three teenagegirls, Shaquanna Edmonds, Latisha Smith, and Naia Hardison, and one young man,Bobby Gibson. Sykes was arrested for Brown's murder on October 23, 2001, and thatnight five eyewitnesses, including Gibson and two of the girls, identified him from alineup as the shooter. All three girls subsequently gave sworn audiotaped statements topolice detectives and an assistant district attorney identifying Sykes as the shooter.
In May and June of 2002, as the date scheduled for his brother's murder trialapproached, the defendant made contact with each of the teenage girls who hadwitnessed the Brown shooting, and began to shower them with gifts and attention. Priorto meeting the defendant, each of the girls heard rumors that he was a dangerous man,and that he was looking for them. Describing these events, Shaquanna Edmonds testifiedthat before she met the defendant for the first time in [*2]June 2002, a friend told her that the defendant wanted totalk to her, and that he was "mad about his brother." The friend urged Edmonds to talk tothe defendant because the defendant was a "very dangerous person," and the friend didnot want to see anything happen to Edmonds. However, once Edmonds actually met thedefendant, he was "very nice," took her out to restaurants to eat, and gave her $100 ontwo different occasions. On one occasion, Edmonds accompanied the defendant to ahotel, where he made "romantic overtures."
Latisha Smith similarly testified that in the months after the defendant's brother wasarrested, two different friends told her that the defendant wanted to talk to her, and oneof these friends warned her that the defendant was "capable of hurting people." She metthe defendant in late May 2002, and for a period of about a month, he called herfrequently, took her out and bought food for her, and gave her money on a couple ofoccasions. During this period, Smith became so close to the defendant that they engagedin sexual relations.
The third girl, Naia Hardison, also testified that she was nervous when the defendantinitially approached her and asked to talk to her, because she had heard a lot of rumorsabout him on the street. She had heard "that it's either lie or die. He supposed to do this tous if we don't testify." Despite the rumors, the defendant was nice to her, showed herlove like a big brother, took her out for meals, and gave her $500 or $600.
After establishing a relationship with the three girls, the defendant asked each one tospeak to Michael Warren, the attorney defending his brother in the Brown murder case,and recant their identifications of Sykes as the shooter. On separate occasions in June2002, the defendant brought each girl to Warren's office to make recorded statements inwhich each recanted her prior identification of Sykes as the shooter, and stated insteadthat Corey McCollough, who had been with Sykes in the park that night, shot Brownover a gang-related dispute. The defendant gave each of the girls $500 shortly after theymade their statements to Warren.
A jury was selected in the Sykes trial on Thursday, June 27, 2002, and thepresentation of evidence was scheduled to commence on Monday, July 1, 2002. OnThursday, June 27, Assistant District Attorney Steven Murphy met with Bobby Gibson,one of the eyewitnesses scheduled to testify against Sykes. Although Murphy had alsoarranged to meet with Edmonds and Smith, they did not appear, and Smith expressedreluctance to meet with him and come to court.
In the early morning hours of Saturday, June 29, 2002, Gibson was shot and killed. Aman named Travis Ragsdale subsequently confessed to the murder, claiming that he wasdrunk when he got into an argument with Gibson at a party, resulting in the shooting.Although Ragsdale was charged with murder in the first degree on a witness-eliminationtheory, he was ultimately acquitted of that charge, and convicted of murder in the seconddegree.
Meanwhile, Edmonds was awakened from her sleep by the sound of gunshots on themorning of Saturday, June 29, 2002, and looked out her window to see Gibson's bodylying on the ground. She recalled thinking to herself, "What's next? I guess I'm next."Smith was also scared when she heard that Gibson had been killed, because at that timenobody knew who had killed him. Detective Warren Bond located all three girls thatevening, and went to see them to ensure that they were all right. Although the girls"seemed very edgy," they told Bond that they were okay. When asked why she did notreveal her contact with the defendant to the police at that point, Edmonds replied that shewas worried about her "life," explaining that she "didn't know what was next," and whatthe consequences of the shooting would be.
On the following evening, Sunday, June 30, 2002, Detective Bond received a phonecall from Smith, who said that she had something to tell him. When Bond went toSmith's location to meet with her, he found Edmonds and Hardison there as well. Allthree girls were very nervous and edgy. After much discussion, Smith told DetectiveBond that she had been approached by an individual who told her that the girls "caneither take money not to testify against Wesley Sykes or they can take a bullet." Smiththen disclosed that the girls had taken money from the defendant not to testify againstSykes. The three girls were transported to the police precinct, where they gave [*3]recorded statements to Assistant District Attorney Murphy.Murphy asked each of the girls whether they wished to be relocated, and each replied thatshe did. The three girls and their families were immediately relocated to hotels by theDistrict Attorney's office. Smith, Edmonds, and Hardison all testified at the Sykes trial,and identified Sykes as the shooter. The defendant was present in court for his brother'strial on the morning of Monday, July 1, 2002. However, as court officers gathered in thecourtroom to arrest him that day, he left the courthouse and disappeared. The defendantwas eventually located in Virginia using a false name, and was arrested on December 19,2002. He was thereafter indicted on charges of witness tampering in the third degree(three counts) and bribing a witness (three counts).
Whether and to what extent to admit evidence that Gibson had been murdered justbefore he was to testify against Sykes was the subject of extensive discussion betweenthe court, the prosecutor, and defense counsel during the course of the trial. The issuewas first raised by the court prior to jury selection, because the trial judge was concernedthat prospective jurors might have seen press coverage of Gibson's murder, linking it tohis role as a witness in the Sykes trial and implicating the defendant. Defense counselargued that no reference at all should be made to the Gibson murder at trial because itwas "wholly immaterial, separate and entirely unrelated" to the bribery and witnesstampering charges against the defendant. The prosecutor argued that testimony regardingGibson's death was relevant to explain why the three teenage girls came forward to theDistrict Attorney, and that absent evidence of Gibson's death, the jury would be left towonder why these witnesses "turned around" on the day of the Sykes trial. Theprosecutor also emphasized that defense counsel had "explored" the files related to therelocation of the girls, "which are ugly" and which showed that the girls were "difficult"witnesses who had misbehaved in the hotels where they had been placed. He urged that itwould be "obscene" to allow defense counsel to impeach the credibility of the girls bycross-examining them about the money given to them by the District Attorney's office forhousing and living expenses during their relocation "without knowing the dangersinvolved and why all these things took place." After hearing arguments by counsel, thecourt indicated that it would formulate an instruction that would inform the jury thatanother person had been tried and found guilty of killing Gibson, and that there was noevidence that the defendant was responsible for Gibson's death. Thereafter, in itspreliminary instructions to prospective jurors, the court informed them that there hadbeen extensive press coverage of some of the issues in the case, including the recent trialof a man named Travis Ragsdale for the murder of Robert Gibson. The court advised theprospective jurors that the defendant was "not in any way accused of being involved inthat murder."
During a subsequent colloquy on this issue, the prosecutor indicated that he intendedto elicit from the three girls that Gibson's death was relevant to their states of mindbecause each had recanted her original statement identifying Sykes, and then adhered toher original statement. The court then ruled that testimony of the murder of anotherwitness to the Brown shooting was "clearly appropriate and necessary given the nature ofthe case and the history of the witness[es]' testimony."
Defense counsel returned to this issue after jury selection, reiterating her position thatthe Gibson murder was unrelated to this case, and further arguing that because thehomicide occurred after the events alleged in this case, it could not have gone to the stateof mind of the complainants. She requested that if the court allowed evidence of theGibson murder to be presented on the prosecution case, she be allowed to haveRagsdale's videotaped confession played to the jury. The court adhered to its ruling thatthe prosecutor could make reference to the Gibson murder and its impact on the girls'decision to change their minds about exonerating Sykes, but instructed him not to"belabor it" or insinuate that the defendant was connected to it.
In accordance with the court's ruling, in his opening statement, the prosecutorreferred to the Gibson murder and the impact it had on the girls. However, he cautionedthe jury that it was important to remember that the defendant was on trial for bribingwitnesses and witness tampering, that they would hear no evidence that the defendantwas anywhere near the location of the Gibson shooting, and that someone else had beenarrested for that shooting.
During the course of direct examination, the prosecutor elicited testimony from each[*4]of the three girls regarding the manner in which theylearned of Gibson's death, and the impact of his death upon them. In addition, theprosecutor was permitted to elicit testimony from Smith that at some point in June 2002,she heard the defendant state that he wanted to talk to two other witnesses to the Brownmurder, Gibson and the victim's brother, Corey Brown. The court allowed the prosecutorto elicit this testimony from Smith over defense counsel's objection, concluding thatdefense counsel had opened the door by making an issue in her opening statement aboutthe fact that although 8 to 10 people in the park witnessed the crime, the defendant hadallegedly approached only the three teenage girls.
After the People rested, defense counsel moved to admit Travis Ragsdale'svideotaped confession into evidence for the truth of his account of the Gibson murder.The court ruled that it would permit the videotaped confession into evidence, but warneddefense counsel that if she put the tape in, she was giving the People the right tochallenge the credibility of Ragsdale's statements. The videotaped confession wasthereafter played for the jury, and the court instructed the jury that since Ragsdale wasadmitting to criminal conduct, his statements were an exception to the hearsay rule, andwere being admitted for their truth. Defense counsel thereafter stipulated to theadmission of rebuttal evidence consisting of a portion of Gibson's autopsy report. Theautopsy report indicated that Gibson was killed by a bullet which entered his lower back,traveled through his abdomen, and perforated his spleen, liver, and heart.
On summation, defense counsel argued that the case against the defendant was a"witch hunt," triggered by the assumption that Gibson was killed because he was awitness in the Sykes case. She submitted that this assumption "couldn't be further fromthe truth" in light of Ragsdale's confession. Defense counsel also challenged the girls'credibility by stressing that they were receiving money from the District Attorney's officeeach week during their relocation, and commenting that "[t]hese girls, they hadassistance, and they treated the District Attorney's office like their personal bank." Sheadded that the prosecution's attempt to suggest the existence of a link between Gibson'skilling and his role as a prospective witness in the Sykes trial had been "[w]holly created"by the District Attorney's office for the purpose of justifying the relocation of the girls.She also argued that the evidence at the Sykes trial pointed to Corey McCollough as theshooter, and asserted that the statements the girls made to Warren were indeed true, andthey thereafter changed their stories only because the District Attorney threatened toarrest each one.
During his summation, the prosecutor also discussed the Gibson murder,commenting that, "We don't have evidence that [the defendant is] behind the killing ofBobby Gibson. You don't have evidence that even his brother Sykes did it. Might have.There's a lot of reasons to speculate about it. But, if you don't have evidence, you don'tarrest the person for the crime. So much for the witch hunt." The prosecutor additionallyfocused on the credibility of Ragsdale's confession, arguing that it left unanswered asmany questions as it answered, including the identity of the person who allegedly passedRagsdale the gun he used to shoot Gibson, and why both Gibson and another witness tothe Brown murder were present "at the same time that Travis Ragsdale was there with agun." He also noted that defense counsel was, in essence, asking the jury to believe thatRagsdale's confession was the "end of [the] story" without asking further questions.
In its charge, the court instructed the jury that, as it had "repeatedly from the verybeginning of this trial" told them, the defendant had "not been charged with causing thedeath of the witness Bobby Gibson." The court also noted that the People had introducedevidence of Gibson's death "for the purpose of explaining the state of mind of the threeof the complainants . . . and to provide the background for theirparticipation in the witness protection program of the District Attorney's office."
At the conclusion of the defendant's trial, the jury returned a verdict acquitting himof three counts of witness tampering in the third degree and convicting him of threecounts of bribing a witness. The defendant now appeals.
Initially, we reject the defendant's contention that the verdict convicting him of threecounts of bribing a witness was not supported by legally sufficient evidence. Pursuant toPenal Law § 215.00, a person is guilty of bribing a witness when he or she"confers, or offers or agrees to confer, any benefit upon a witness or a person about to becalled as a witness in any action or proceeding upon an agreement or understanding that. . . the testimony of such witness will thereby be influenced." Viewing theevidence in the light most favorable to the prosecution (see People v Contes, 60NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guiltbeyond a reasonable doubt. The evidence presented at trial established that as hisbrother's murder trial approached, the defendant sought out and befriended the threeteenage girls who had identified Sykes as the man who shot Dennis Brown, taking themout to eat and giving them monetary gifts. He then asked each of them to make falsestatements exonerating his brother to his brother's attorney, Warren, took them toWarren's office and remained with them as they made their statements, and gave each ofthem $500 shortly after they made their statements to Warren. A rational trier of factcould have found, based on this evidence, that the defendant had "at least a unilateralperception or belief" (People v Bac Tran, 80 NY2d 170, 178 [1992]) that the giftsand affection he conferred on each witness would influence her testimony in his brother'supcoming trial. Moreover, upon our independent review pursuant to CPL 470.15 (5), weare satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]; People v Goldman, 175 AD2d 723, 724 [1991]).
We further find that the defendant was not deprived of a fair trial by the admission ofevidence that Gibson was murdered on the weekend before he was to testify as a witnessin the Sykes trial, and of the defendant's statement that he wanted to speak to Gibsonshortly before the murder. The general rule in New York is that all relevant evidence isadmissible at trial unless its admission is barred by some exclusionary rule (seePeople v Mateo, 2 NY3d 383, 425 [2004], cert denied 542 US 946 [2004];People v Scarola, 71 NY2d 769, 777 [1988]; People v Pearce, 81 AD3d 856 [2011]). "Evidence isrelevant if it has any tendency in reason to prove the existence of any material fact, i.e., itmakes determination of the action more probable or less probable than it would bewithout the evidence" (People v Scarola, 71 NY2d at 777; see People vAlvino, 71 NY2d 233, 241 [1987]). Relevant evidence may nevertheless be excludedby the trial court in the exercise of its discretion if its probative value is substantiallyoutweighed by the danger that it will unfairly prejudice the other side or mislead the jury(see People v Caban, 14NY3d 369, 374-375 [2010]; People v Scarola, 71 NY2d at 777).
Evidence of uncharged crimes is generally excluded under the Molineux rule(People v Molineux, 168 NY 264 [1901]) for policy reasons, because suchevidence may induce the jury to base a finding of guilt on collateral matters, or to convicta defendant because of his or her past criminal history (see People v Alvino, 71NY2d at 241). Nevertheless, evidence of prior uncharged crimes may be received if it isrelevant to some issue other than the defendant's criminal disposition (see People v Morris, 21 NY3d588, 594 [2013]). The purposes for which uncharged crime evidence may properlybe admitted include completing the narrative of the events charged in the indictment andproviding necessary background information (see People v Morris, 21 NY3d at594; People v Till, 87 NY2d 835, 837 [1995]). "Where there is a propernonpropensity purpose, the decision whether to admit evidence of the defendant's priorbad acts rests upon the trial court's discretionary balancing of probative value and unfairprejudice" (People v Dorm,12 NY3d 16, 19 [2009]; seePeople v Holden, 82 AD3d 1007, 1008 [2011]).
However, "[t]he Molineux rule was created to address a particular prejudiceinherent to a particular type of proof: evidence of a defendant's prior crimes and badacts" (People v Cortez, 22NY3d 1061, 1077 [2014, Abdus-Salaam, J., concurring]). That type of prejudice isnot present in this case, because evidence that Gibson was murdered two days before hewas scheduled to testify against Sykes did not constitute proof that the defendantcommitted an uncharged crime or bad act. Thus, evidence of the Gibson murder is notMolineux evidence. In this regard, we note that although the prosecutor didindeed express his personal belief that the defendant was involved in the Gibson murderto the trial court during a colloquy, he did not express that belief to the jury. Rather, hestated to the jury, during both his opening statement and summation, that they would hearno evidence that the defendant was involved in the Gibson murder, and that he was notcharged with that crime. While the prosecutor suggested the existence of a connectionbetween Gibson's role as a prospective witness in the Sykes trial and his murder byquestioning the credibility of portions of the Ragsdale confession on summation, he didnot argue to the jury that the defendant was involved [*5]in Gibson's death. Further, the court minimized anypossibility that the jury would mistakenly view the evidence of Gibson's murder asevidence that the defendant was involved in that crime by instructing the jury that thedefendant had not been charged in Gibson's death, and that the evidence of Gibson'smurder had been introduced for the limited purpose of explaining the state of mind of thethree girls, and providing background for their participation in the witness protectionprogram (see People v Morris, 21 NY3d at 598). Jurors are presumed to havefollowed a trial judge's limiting instructions (see People v Morris, 21 NY3d at598; People v Davis, 58 NY2d 1102, 1104 [1983]).
Even if the evidence of Gibson's death could arguably be viewed as suggesting thatthe defendant committed an uncharged crime, it was properly admitted to explain whythe girls, having recanted their original statements identifying Sykes as Dennis Brown'skiller, admitted to the police that they had made false recantations, and adhered to theiroriginal statements. Indeed, two of the girls testified that Gibson's murder, two daysbefore the presentation of evidence in the Sykes trial was to begin, frightened them. Theimpact of Gibson's murder on the state of mind of these witnesses was interwoven withthe narrative of the charged crimes, and necessary to help the jury understand the case incontext, because it explained the girls' conduct in coming forward to disavow therecorded statements they had made to Warren which exonerated Sykes and implicatedCorey McCollough in the Brown murder (see People v Tosca, 98 NY2d 660, 661[2002]; People v Genyard,84 AD3d 1398, 1400 [2011]; People v Devaughn, 84 AD3d 1394, 1395 [2011]; People v Jordan, 74 AD3d986 [2010]). Although the defendant contends that evidence of the Gibson murderhad no probative value because it occurred after each girl had already recanted heroriginal statement to law enforcement officials and accepted $500, we disagree. Theabsence of a credible explanation for why the girls readopted their original statementswould have lent support to the defense argument that the statements the girls made toWarren were indeed true, and that Corey McCollough, not Wesley Sykes, was Brown'skiller. The fact that it could be alternatively argued that the girls reneged on theiragreement with the defendant and testified against Sykes at his trial because they wereafraid of being imprisoned for perjury does not diminish the relevance of the profferedtestimony in elucidating a key part of the narrative.
Moreover, in our view, it cannot be fairly said on this record that there was no proofestablishing that Gibson's murder played a role in the girls' decision to retract theirrecantations. Both Edmonds and Smith acknowledged that the Gibson murder frightenedthem, and on the day after the shooting, Smith reached out to Detective Bond, whoresponded by going to meet with her. It was at that meeting with Bond that Smithdisclosed that an individual had approached her and told her that the girls "can either takemoney not to testify against Wesley Sykes or they can take a bullet," and thereafterdisclosed their dealings with the defendant. It can reasonably be inferred from thisevidence that the girls' decision to come forward was motivated, at least in large part, byfear engendered by Gibson's murder on the eve of his scheduled trial testimony in theSykes case.
The evidence that Gibson was murdered shortly before he was to testify in the Sykestrial was also necessary to explain why the girls were placed in the District Attorney'switness protection program. Although the defendant maintains that evidence of the girls'participation in the witness protection program was immaterial because his trial counseldid not intend to make it an issue in the case, he did not object to the admission of thisevidence at trial. Moreover, the record does not support the defendant's assertion that hisattorney did not intend to make the girls' participation in the witness protection programan issue in this case. When the trial court first raised the issue of the Gibson murder, theprosecutor noted that defense counsel had examined the relocation files showing that thegirls were difficult witnesses who had misbehaved in the hotels where they had beenplaced, and that "it would be obscene for the jury to be left with the impressionthat—without knowing the dangers involved and why all these things took place,just to hear about efforts we are making to give witnesses money." During a lengthydiscussion of this issue, defense counsel herself never represented to the trial court thatshe would not use the information contained in the relocation files to impeach the girls'credibility on cross-examination. Indeed, when the trial court stated that evidence of theGibson murder was necessary to provide context in light of defense counsel's intent tocross-examine the girls about incidents that occurred while they were participating in thewitness protection program, defense counsel responded only by stating that she wouldask for an immediate instruction that there was no connection between the Gibsonmurder and [*6]the defendant. Defense counsel thereafterextensively cross-examined each girl, in great detail, about the housing and other benefitsreceived through participation in the witness protection program. Evidence that theDistrict Attorney's office had expended significant sums of money to provide the girlsand their families with housing and living expenses during their participation in thewitness protection program was pivotal to the defense theory that their statements toWarren exonerating the defendant's brother were true, and that they disavowed thosestatements because of the monetary benefits they received from the District Attorney.Defense counsel also used information gleaned from the relocation files to cross-examineeach girl about her conduct while participating in the program. This included questioningEdmonds as to whether she and her family had been kicked out of a hotel for "hangingout until all hours of the night in the lobby," questioning Smith about angry messages shehad left for the prosecutor because she felt that the District Attorney's office wasmanipulating her and treating her unfairly, and eliciting testimony from Hardison that shehad gotten into fights in some of the hotels where she had been placed, and had beenkicked out of them.
To clarify, we do not suggest, as the dissent indicates, that defense counsel "openedthe door" to the admission of evidence of the girls' participation in the witness protectionprogram by examining the relocation files, and failing to represent that she would notcross-examine the girls on this subject. The dispute in this case involved the admission ofevidence of the Gibson murder, not of the girls' participation in the witness protectionprogram, and it is clear from the record that the admission of this evidence was a key partof the defense strategy.
More importantly, as our dissenting colleague recognizes, it has been held that thereis no compelling reason why testimony "directly bearing on the motive to testify of acritical witness in a criminal trial, whose motive is important to an evaluation of hercredibility . . . may not be considered as serving an appropriate probativepurpose" for the admission of uncharged crime evidence (People v Beckles, 128AD2d 435, 439 [1987]; see People v Rodriguez, 143 AD2d 854, 855 [1988]).The admission of evidence bearing on the credibility of key witnesses serves thetruth-finding process, in which it is the jury's role to "assess the credibility of witnessesand determine, for itself, what portion of their testimony to accept and the weight suchtestimony should be given" (People v Negron, 91 NY2d 788, 792 [1998]; seePeople v Morris, 21 NY3d at 597-598). Evidence that Gibson's death motivated thegirls to come forward to the police and admit that they had been bribed by the defendantwas particularly important to an assessment of their credibility in this case, since, asnoted, a major theme of the defense was that the girls had retracted their recantationsbecause of the money and benefits they received through their participation in thewitness protection program. In the absence of evidence establishing a legitimate need forthe girls' participation in the program, the jury would not be able to place the defenseargument in proper context. Accordingly, the trial court properly exercised its discretionin determining that the jury should be permitted to hear evidence of Gibson'smurder.
While our dissenting colleague also expresses concern that the admission of evidenceof the Gibson murder on the People's direct case caused the defendant to be subjected toa "trial within a trial" to determine whether he was complicit in the homicide, thedefendant himself has not advanced this argument. In any event, we are satisfied that thedefendant was not improperly subjected to a trial within a trial to determine hisinvolvement in the Gibson murder. As noted, the jury was instructed that the defendantwas not charged in the Gibson murder and instructed as to the limited purposes for whichtestimony of the murder was to be considered. Moreover, the prosecutor did not elicit anyevidence of the defendant's involvement in the Gibson murder, and informed the jury inhis opening that they would hear no such evidence. Although the prosecutor offered aportion of Gibson's autopsy report as rebuttal evidence to challenge the credibility ofRagsdale's account of the shooting, defense counsel was clearly warned by the court thatshe would open the door to such rebuttal if she sought to admit Ragsdale's videotapedconfession into evidence. While the rebuttal evidence could be viewed as casting doubton Ragsdale's account of how and why the shooting occurred, it was not tantamount toan attempt to prove the defendant's involvement in an uncharged crime.
It is also important to keep in mind that the subject of the Gibson murder, and theadmissibility of evidence of its occurrence, were first raised by the trial court itself out ofconcern [*7]that prospective jurors might have seen presscoverage suggesting that Gibson was murdered because he was a witness in the Sykestrial, and that the defendant was involved in the murder. The court brought this issue tothe forefront to afford the prosecutor and defense counsel a full opportunity to presentarguments relating to the probative value of the challenged testimony, and its potentialfor prejudice, and ruled that evidence of the Gibson murder was admissible only afterextensive discussions with the prosecutor and defense counsel. This is not a situation inwhich the trial court made its ruling without taking into consideration the potential thatthe defendant could be prejudiced by the admission of evidence of the Gibsonmurder.
Further, the trial court properly permitted the prosecutor to elicit testimony thatSmith heard the defendant state that he wanted to talk to two other witnesses to theBrown murder, Gibson and the victim's brother, Corey Brown. Defense counsel openedthe door to this testimony by emphasizing during her opening statement that the girlswere not the only witnesses to the Brown murder, and that in fact 8 to 10 people hadwitnessed the shooting, thus suggesting that there would be no reason for the defendantto single out just three of the witnesses against his brother (see People v Mateo, 2NY3d at 425-426; People v Rojas, 97 NY2d 32, 38-40 [2001]; People v Martin, 100 AD3d930 [2012]).
The defendant's contention that he was deprived of a fair trial by certain commentsthe prosecutor made on summation relating to the Gibson murder is largely unpreservedfor appellate review, since he failed to object to most of the challenged statements(see CPL 470.05 [2]; People v Morency, 104 AD3d 877, 878 [2013]; People v Hines, 102 AD3d889, 890 [2013]). In any event, the challenged remarks were fair comment on theevidence, constituted a fair response to defense counsel's summation, or otherwise do notwarrant reversal (see People v Galloway, 54 NY2d 396, 401 [1981]; People vAshwal, 39 NY2d 105, 109-110 [1976]; People v McGowan, 111 AD3d 850 [2013]; People v Barton, 110 AD3d1089 [2013]; People v Morency, 104 AD3d at 878).
We also find no merit to the defendant's contention that his adjudication as apersistent felony offender was unconstitutional pursuant to Apprendi v NewJersey (530 US 466 [2000];see People v Battles, 16 NY3d 54, 59 [2010], cert denied 565 US&mdash, 132 S Ct 123 [2011]; People v Quinones, 12 NY3d 116 [2009], certdenied 558 US 821 [2009]; People v Rivera, 5 NY3d 61 [2005], cert denied546 US 984 [2005]; People v Rosen, 96 NY2d 329 [2001], cert denied534 US 899 [2001]; People vBazemore, 100 AD3d 915, 916 [2012]; People v Watts, 89 AD3d 965, 966 [2011]).
The defendant's claim that the court improperly relied upon an unproven allegationof misconduct in imposing sentence is unpreserved for appellate review (see People v Walters, 90 AD3d958, 959 [2011]; People vMathieu, 83 AD3d 735, 737 [2011]; People v Baez, 52 AD3d 840 [2008]) and, in any event,without merit (see People v Walters, 90 AD3d at 959; People v Vaughan, 20 AD3d940, 941-942 [2005]).
The court providently exercised its discretion in sentencing the defendant as apersistent felony offender (see Penal Law § 70.10 [2]). The court'sdetermination that the nature of the defendant's criminal conduct, his history, and hischaracter warranted extended incarceration and lifetime supervision is supported by therecord (see People v Dixon,107 AD3d 735, 736 [2013]; People v Maxwell, 22 AD3d 607 [2005]; People v Perry, 19 AD3d619 [2005]).
The defendant's remaining contentions, raised in his pro se supplemental brief, areunpreserved for appellate review and, in any event, without merit. Eng, P.J., Rivera andLott, JJ., concur.
Miller, J., dissents, and votes to reverse the judgment and order a new trial on thecounts of the indictment charging the defendant with bribing a witness: I respectfullydissent.
The Supreme Court's decision to permit the People to introduce evidence of anuncharged crime during their case-in-chief had a far-reaching impact on the course andcharacter of [*8]the defendant's entire trial. The court'sevidentiary rulings permitted the defendant to be cast as a man who had been involved ina heinous witness-elimination murder and the specter of that uncharged crimeovershadowed the charges for which the defendant was on trial. The focus of the trialwas so completely shifted to the uncharged murder that the case unraveled into a trialwithin a trial at which both sides presented the jury with evidence to establish questionsof fact relating to the defendant's involvement in the uncharged crime. The probativevalue of such evidence, inferential at best, was confined to collateral matters which boresuch a slight and tenuous connection to the relevant issues of this case that the prosecutorstruggled to articulate its relevance without resorting to empty legalism and metaphor.The prejudice suffered by the defendant as a result of this inflammatory evidence ofwitness-elimination was severe and unmistakable, yet the prospect of prejudice waswholly ignored by the trial court when it decided to expose the jury to evidence ofmurder. For these reasons and the ones that follow, I conclude that the defendant wasdeprived of a fair trial and that he is entitled to a new one on the counts of the indictmentcharging him with bribing a witness.
The defendant was charged with three counts of tampering with a witness in the thirddegree (see Penal Law § 215.11) and three counts of bribing awitness (see Penal Law § 215.00). At trial, the People called threeyoung women, all between the ages of 20 and 21 years old (hereinafter collectively thecomplainants), who each testified that they were present when an individual shot anotherindividual in a park on September 4, 2001. The complainants testified that after beingcontacted by law enforcement personnel, they eventually identified the defendant'sbrother as the shooter and made audiotaped statements in the presence of detectives andan assistant district attorney to that effect.
The complainants stated that sometime in May or June 2002, they began to hearrumors that the defendant was a dangerous person and that he was looking for them.They testified that they heard that the defendant was "mad about his brother" and that hewould make sure that they "either lie or die." The complainants testified that eventuallythey were each contacted by the defendant, but that he treated them well, lavishing themwith gifts and affection. Portions of the complainants' testimony indicated that thedefendant wanted them to recant their identification of his brother as the shooter. In June2002, the complainants each separately traveled with the defendant to the office of hisbrother's attorney, where they made audiotaped recordings in which they recanted theiridentification of the defendant's brother and instead indicated, consistent with thedefendant's view, that another individual was responsible for the shooting. Thecomplainants testified that the defendant was present when they recanted their stories andthat he gave each of them $500 shortly after they visited the lawyer's office. Thecomplainants each testified that the statements they gave at the lawyer's office were nottrue.
Prior to the beginning of the trial, defense counsel had sought to preclude theprosecution from introducing evidence of an uncharged crime: the murder of a mannamed Bobby Gibson. The prosecutor opposed defense counsel's application, arguingthat it was "impossible and ludicrous" to separate the two cases, and that precludingreference to the Gibson murder would be "obscene." The Supreme Court initiallyconcluded that the fact that Gibson was murdered was not necessarily connected to thiscase. However, the prosecutor argued that this ruling was "outrageous," and referenced aprior trial in which the same defense attorney allegedly used a favorable evidentiaryruling to deceive the jury. After the prosecutor expressed his personal "belie[f]" that thedefendant was "behind the killing of the witness," the court determined that it wouldpermit the People to introduce evidence relating to that uncharged crime. Defensecounsel "vehemently" objected and argued that the prejudice would deprive thedefendant of a fair trial.
Based on this pretrial ruling, the People were permitted to elicit evidence, in theircase-in-chief, that in June 2002—two days before the defendant's brother wasscheduled to be tried for the shooting—an individual named Bobby Gibson wasshot and killed. Gibson was identified as a potential witness in the case against thedefendant's brother, and although the prosecutor repeatedly disclaimed any intention oflinking the defendant to Gibson's murder, he nevertheless elicited evidence from one ofthe complainants that the defendant had told someone that he wanted to speak withGibson prior to Gibson's death. After learning that Gibson had been shot and killed,[*9]one of the complainants testified that she thought thatshe was "next" and she contacted the two other complainants who stated that they did notfear the defendant and had no reason to go to the police.
None of the complainants initiated contact with the police after Gibson was killed.When police contacted the complainants after Gibson's death, they were told that thecomplainants had no problems, and the complainants did not request assistance ordisclose their interactions with the defendant. However, the police later learned that thecomplainants had given new statements to the attorney representing the defendant'sbrother after receiving a telephone call from one of the complainants. The complainantswere then directed to report to the District Attorney's office, where they were informedthat they could be arrested for changing their original statements. Thereafter, thecomplainants gave new statements consistent with their original statements, and theyultimately testified against the defendant's brother at his subsequent trial. The Peoplewere also permitted to elicit additional testimony on their direct case to establish that inthe wake of Gibson's death, the complainants were placed in a witness protectionprogram where they and their families were provided with housing and other publicassistance.
The trial then degenerated into a trial within a trial. In response to the People'sevidence showing that Gibson was killed two days before the trial of the defendant'sbrother and shortly after the defendant himself was heard saying he wanted to talk tohim, the defendant was permitted to play a videotaped statement in which an individualnamed Travis Ragsdale confessed to shooting Gibson. The videotaped statement wasadmitted for its truth: to demonstrate that Ragsdale was the one who shot and killedGibson, and that he had not done so intentionally, but rather as a result of analcohol-related altercation. Ragsdale had been acquitted of first degree(witness-elimination) murder and convicted of second degree murder.
The People then argued that since the videotaped statement was admitted to showthat Ragsdale was responsible for the shooting of Gibson and that the shooting was not awitness-elimination murder, they should be permitted to submit rebuttal evidence toshow that the defendant was "responsible" for the shooting of Gibson and that Ragsdale'sstatement did not preclude the defendant's "involvement." The Supreme Court ruled thatthe videotaped statement "opened the door" to rebuttal evidence and that the Peoplewould be permitted to challenge Ragsdale's credibility and to suggest that the shooting ofGibson was part of a larger crime. On their rebuttal case, the People submitted, inter alia,a report prepared in connection with Gibson's autopsy which showed that Gibson's deathhad been caused by a bullet that entered his lower back, traveled through his abdomen,and perforated his spleen, stomach, liver, and heart.
The jury returned a verdict finding the defendant guilty of the three counts of bribinga witness. The defendant was acquitted of the three counts of tampering with a witness inthe third degree. The defendant was subsequently sentenced to three concurrent terms ofimprisonment of 15 years to life.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), I agree with my colleagues in the majority that it waslegally sufficient to establish beyond a reasonable doubt the defendant's guilt withrespect to the three counts of bribing a witness (see Penal Law§ 215.00; cf. People v Bac Tran, 80 NY2d 170, 176 [1992]).Moreover, I also agree that the verdict of guilt was not against the weight of the evidence(see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d633 [2006]).
Nevertheless, the defendant is entitled to a new trial. "It is a general rule that it iserror to receive evidence as proof of the offense charged that an accused has committed acriminal offense other than that charged in the indictment" (People v Thompson,212 NY 249, 251 [1914]; see Jerome Prince, Richardson on Evidence§ 4-501 [Farrell 11th ed, 2008 Supp]). "The rule excluding evidence ofuncharged crimes is based upon the human tendency more readily 'to believe in the guiltof an accused person when it is known or suspected that he [or she] has previouslycommitted a similar crime' " (People v Ventimiglia, 52 NY2d 350, 359[1981], quoting People v Molineux, 168 NY 264, 313 [1901]; People vAllweiss, 48 NY2d 40, 47 [1979]; see People v Zackowitz, 254 NY 192, 198[1930]). It has been recognized that "[t]he natural and inevitable tendency of thetribunal—whether judge or jury—is to [*10]give excessive weight to the vicious record of crime thusexhibited, and either to allow it to bear too strongly on the present charge, or to take theproof of it as justifying a condemnation irrespective of guilt of the present charge"(People v Zackowitz, 254 NY at 198 [internal quotation marks omitted]).Accordingly, although "[i]t may be logical to conclude from a defendant's prior crimesthat he [or she] is inclined to act criminally," this evidence is nonetheless "excluded forpolicy reasons because it may induce the jury to base a finding of guilt on collateralmatters or to convict a defendant because of his past" (People v Arafet, 13 NY3d460, 465 [2009] [internal quotation marks omitted]; see People v Giles, 11 NY3d495, 499 [2008]).
However, "[t]he rule does not prohibit the admission of evidence of other. . . acts . . . which reveal or suggest the defendant'scommission of some other crime—when these acts have substantial probativevalue to prove the crime charged" (Jerome Prince, Richardson on Evidence§ 4-501 [Farrell 11th ed, 2008 Supp]; see People v Ventimiglia, 52NY2d at 359; People v Allweiss, 48 NY2d at 47). Evidence of such acts may beadmissible where that evidence is "relevant because of some recognized exception to thegeneral rule . . . for example, to show (1) intent, (2) motive, (3) knowledge,(4) common scheme or plan, or (5) identity of the defendant" (People v Lewis, 69NY2d 321, 325 [1987]; see People v Molineux, 168 NY at 293).
"Even when admissible for such purposes, however, the evidence may not bereceived unless its probative value exceeds the potential for prejudice resulting to thedefendant" (People v Lewis, 69 NY2d at 325; see People v Cass, 18 NY3d 553, 560 [2012]). "If theevidence is actually of slight value when compared to the possible prejudice to theaccused, it should not be admitted, even though it might technically relate to some fact tobe proven" (People v Allweiss, 48 NY2d at 47; see People v Giles, 11NY3d at 499). Indeed, the Court of Appeals has "stressed, yet again, the obligation oftrial courts to take special care to ensure not only that the evidence bears some articulablerelation to the issue, but also that its probative value in fact warrants its admission despitethe potential for prejudice" (People v Bradley, 20 NY3d 128, 134 [2012] [internalquotation marks omitted]).
"There is no litmus paper test for determining when the probative value of theevidence outweighs its potential for prejudice" (People v Ventimiglia, 52 NY2dat 359). "In final analysis the process is one of balancing in which both the degree ofprobativeness and the potential for prejudice of the proffered evidence must be weighedagainst each other" (id.). "Factors which play a part in measuring probative valueare 'the degree to which the evidence persuades the trier of fact that the particular factexists and the [logical] distance of the particular fact from the ultimate issues of thecase' " (id., quoting Dolan, Rule 403: The Prejudice Rule inEvidence, 49 So Cal L Rev 220, 233 [1976]). "On the issue of probative value,materiality and necessity are important" (People v Ventimiglia, 52 NY2d at 360[internal quotation marks omitted]). "The court should not permit the admission of othercrimes until it has ascertained that the evidence tends logically and by reasonableinference to prove the issue upon which it is offered, that it is offered on an issuematerial to the prosecution's case, and is not merely cumulative" (id. [internalquotation marks omitted]).
In sum, the determination of whether evidence of prior bad acts or uncharged crimesmay be admitted in a particular case requires a two-part inquiry: "first, the proponent ofthe evidence must identify some material issue, other than the defendant's criminalpropensity, to which the evidence is directly relevant; once the requisite showing ismade, the trial court must weigh the evidence's probative value against its potential forundue prejudice to the defendant" (People v Cass, 18 NY3d at 560 [citationomitted]).
"Whether evidence of prior crimes may be admitted under the Molineux ruleis a question of law, not discretion" (People v Alvino, 71 NY2d 233, 242 [1987];see People v McKinney, 24 NY2d 180, 185 n 4 [1969]). "If the evidence of priorcrimes is probative of a legally relevant and material issue before the court, and for thatreason not automatically barred under the general rule, admissibility turns on thediscretionary balancing of the probative value and the need for the evidence against thepotential for delay, surprise and prejudice" (People v Alvino, 71 NY2d at 242; see People v Agina, 103 AD3d739, 743 [2013]). Although a trial court enjoys "broad discretion" in decidingwhether to admit evidence challenged as unduly prejudicial (People v Cortez, 22 NY3d1061, 1079 [2014, Abdus-Salaam, J., concurring]), a court nevertheless commitslegal error "[w]here [it] has abused its discretion or exercised none at all" (People vWilliams, 56 NY2d 236, 239 [1982]; see People [*11]v Cortez, 22 NY3d at 1079; People v Davis,44 NY2d 269, 275 [1978]).
Here, the clearest indication of the Supreme Court's determination as to the relevancyof Gibson's murder to the charged crimes is found in its instruction to the jury that theevidence of Gibson's murder was admitted for the purpose of explaining thecomplainants' state of mind and providing background for their participation in the state'switness protection program. It is true that the state of mind of each of the complainantswas relevant to the charges of tampering with a witness in the third degree, since thePeople were required to show that the defendant attempted to instill fear in them (seePenal Law § 215.11; People v Henderson, 265 AD2d 573,573-574 [1999]; cf. People vMorris, 82 AD3d 908, 908-909 [2011]). However, the People never sought touse evidence of Gibson's murder as a means of proving that the defendant hadintimidated the complainants into changing their testimony or refusing to testify and, inany event, the evidence did not establish any such logical connection between that crimeand crimes with which the defendant was charged.
Despite the intimations of the prosecution to the contrary, the evidence wasinadequate to show that the defendant was in any way involved in Gibson's murder.Thus, to the extent that evidence of Gibson's murder was presented to the jury in anattempt to establish that the defendant attempted to instill fear in the complainants, itlacked any probative value since, aside from the prosecutor's improper remarks onsummation, the defendant was not adequately linked to that act (see People vCook, 42 NY2d 204, 208 [1977]; People v Leon, 121 AD2d 1, 9 [1986]; see also People v Randolph, 18AD3d 1013, 1015-1016 [2005]; People v Rivera, 160 AD2d 267, 271-272[1990]).
While this lack of a connection to the defendant affected the relevancy and probativevalue of the disputed evidence of Gibson's murder, it did not, as the People contend,render such evidence benign. To the contrary, in similar contexts, both this Court and theCourt of Appeals have recognized the undue prejudice suffered by defendants throughthe admission of "highly inflammatory" evidence that is not directly attributed to thedefendants, but is nevertheless admitted in the case against them (People v Smith,52 NY2d 802, 803-804 [1980]; see People v Martinez, 253 AD2d 775, 775-776[1998]; People v Pascullo, 120 AD2d 687, 689 [1986]).
Moreover, any inference that Gibson was killed in an attempt by the defendant toindirectly influence the complainants' conduct would have been speculative at best (see generally People vAdames, 52 AD3d 617, 619 [2008]). Indeed, Gibson was shot after thecomplainants had already changed their stories and after their last contact with thedefendant (cf. People v Kyser, 183 AD2d 238, 243 [1992]). In other words, sincethe alleged tampering and bribery of the complainants had already been accomplished atthe time Gibson was shot, evidence of Gibson's murder simply did not tend to prove anymaterial element in the case (seePeople v Park, 12 AD3d 942, 944 [2004]; People v Foster, 295 AD2d110, 112-113 [2002]; see also People v Bell, 217 AD2d 585, 586 [1995]).
Nor was the disputed evidence rendered admissible on the ground that it completedthe narrative or furnished background information. The talismanic invocation of thesephrases as grounds for the admission of uncharged crimes has prompted the Court ofAppeals to note that its use of these phrases in several decisions "should not beinterpreted as automatically allowing the prosecution to introduce evidence of unchargedcrimes merely because the evidence is said to complete the narrative or furnishbackground information" (People v Resek, 3 NY3d 385, 390 [2004]).
To be sure, "[i]n appropriate instances, evidence of uncharged crimes may beallowable as background or narrative because juries might 'wander helpless' trying to sortout ambiguous but material facts" (id., quoting People v Green, 35 NY2d437, 441 [1974]; see People v Gleason, 285 App Div 278, 281 [1954]). Here,however, Gibson's murder constituted an entirely separate event that occurred after thecharged crimes were allegedly completed. Proof of Gibson's murder was not sointerwoven with "the evidence on which the guilt or innocence of the defendant [would]be determined" that the jury required knowledge of the murder to make sense of thematerial facts of the tampering and bribery charges (People v Gleason, 285 AppDiv at 281; see People v Stanard, 32 NY2d 143, 146-147 [1973]). Indeed, whenproof of the charged crime may be amply understood without resort to evidence of anuncharged crime, the Court of Appeals has rejected similar "completing the narrative"contentions as a matter of law, even in circumstances where the uncharged crimes were[*12]actually committed contemporaneously with thecharged crimes (see People v Resek, 3 NY3d at 389; People v Cook, 42NY2d at 208; see also People v Foster, 295 AD2d at 112-113).
It is apparent that evidence of Gibson's murder was not relevant to directly establishany of the elements of the charged crimes, nor was it warranted to explain evidence thatwas probative of the elements of the charged crimes. The prosecution neverthelesscontended that the evidence of Gibson's murder was probative of the state of mind ofeach of the complainants to explain why they changed their stories and to explain whythey entered into the witness protection program.
However, evidence of the fact that the complainants entered into a witness protectionprogram was itself improperly admitted. There was no reason why the jury needed to beinformed, on the People's direct case, that the complainants had sought refuge in awitness protection program. By placing before the jury evidence that law enforcementdeemed it necessary to take the unusual step of affording the complainants near-constantprotection, the jury was improperly invited to speculate as to the source of this threat totheir safety (see People vSpence, 92 AD3d 905, 905-906 [2012]; People v Leon, 121 AD2d at9-10). In sum, the need to explain why the complainants were placed in the witnessprotection program was a self-created problem that stemmed from the improperadmission of the witness-protection evidence in the first place (see People vSpence, 92 AD3d at 905-906; People v Leon, 121 AD2d at 9-10). It canhardly be said that such evidence was a "necessity" to the People's case (People vVentimiglia, 52 NY2d at 360 [internal quotation marks omitted]).
The People nevertheless contend that defense counsel "opened the door" to theadmission of the witness-protection evidence by (1) examining the complainants'relocation files in preparation for the trial and (2) failing to represent to the trial courtthat she would not make use of the information contained in those files. Thesearguments, cited by my colleagues in the majority, would represent a significantexpansion of existing law by recognizing that a defense attorney may open the door tootherwise inadmissible evidence before the trial even begins simply by investigating orfamiliarizing himself or herself with the facts surrounding the case or by exploringpossible avenues of impeachment of likely witnesses. This position, if accepted, wouldalso appear to place a burden on a defense attorney to affirmatively certify to a court thathe or she will not pursue certain trial strategies before the trial has begun, thereby forcinga defendant to choose among available trial tactics before the People even begin to puton their case. There is no need for any such expansion of the already nebulous "openingthe door" jurisprudence, and there has been no citation to any legal authority to supportthese positions.
Furthermore, since the prosecution did not adequately link the defendant to Gibson'smurder, it could not have served to show that the defendant intended to instill fear in thecomplainants (see People v Smith, 52 NY2d at 803-804; People vMartinez, 253 AD2d at 775-776; People v Pascullo, 120 AD2d at 689; cf.People v Tas, 51 NY2d 915, 916 [1980]). Indeed, any generalized fear experiencedby the complainants that was unattributable to the defendant was not relevant to anymaterial element of the crimes charged. General, nonattributable fear experienced by thecomplainants as a result of the Gibson murder could only have been relevant to thecomplainants' general credibility.
It has been recognized, primarily in other contexts, that evidence of unchargedconduct may be probative where it is "directly bearing on the motive to testify of acritical witness in a criminal trial, whose motive is important to an evaluation of hercredibility" (People v Beckles, 128 AD2d 435, 439 [1987]; see People vAnonymous, 275 AD2d 210, 212 [2000], affd 96 NY2d 839 [2001];People v Folk, 176 AD2d 754, 754-755 [1991]). Here however, the complainantsdid not testify that their decision to retract their recantations was motivated by theirknowledge of Gibson's murder. There was no direct proof establishing that Gibson'smurder played any role in the complainants' decision to testify in the way that they did(cf. People v Anonymous, 275 AD2d at 212; People v Folk, 176 AD2d at754-755). My colleagues in the majority do not conclude otherwise, instead finding that amotivating factor behind the complainants' decision to testify could "reasonably beinferred" from the evidence of Gibson's murder.
[*13] Even if the evidence of Gibson's murder wasinferentially probative of the complainants' motive to testify, it was nevertheless error toadmit it. To begin, the evidence was improperly admitted during the People'scase-in-chief (cf. People v Edwards, 261 AD2d 260, 261 [1999]; People vPondexter, 215 AD2d 409, 410 [1995], revd on other grounds 88 NY2d 363[1996]; People v Wilson, 195 AD2d 493, 493-495 [1993]; People vRivera, 160 AD2d 267, 271 [1990]; People v Burke, 128 AD2d 542, 543[1987], affd 72 NY2d 833 [1988]; Jerome Prince, Richardson on Evidence§ 6-415 [Farrell 11th ed, 2008 Supp]). The evidence of Gibson's murderwas not made in response to an attack on the credibility of the complainants or to fullyexplain a matter to which the defendant had " 'open[ed] the door' "(People v Melendez, 55 NY2d 445, 451 [1982]). Rather, the Supreme Court'sruling on this matter occurred before the trial even began. In this way the People werepermitted to adduce evidence of Gibson's murder on their direct case, effectivelybolstering the credibility of their own witnesses before they were attacked incross-examination (cf. People v Trowbridge, 305 NY 471, 477 [1953]),notwithstanding that "enhancement of the complaining witness's credibility [is not] oneof the recognized exceptions to the Molineux rule" (People v Harris, 150AD2d 723, 725 [1989]).
This error does not represent some technical violation of timing, since by permittingthis preemptive bolstering, the court effectively deprived defense counsel of a wholerange of strategic options as to how to defend against the charges of witness tamperingand bribery. As a result, defense counsel was forced to address the issue from the outsetof the case and engage in the difficult task of defending against the implication ofcomplicity in an uncharged murder.
It is for this reason that the People's repeated contention that defense counsel openedthe door to such evidence must fail. Defense counsel's reference in her opening statementto other witnesses to the Sykes murder and her cross-examination of the complainants asto matters concerning the relocation program occurred after the trial court, reversing itsearlier ruling, permitted the People to introduce evidence of Gibson's murder and thecomplainants' relocation on their direct case. The People, in effect, seek to justify theadmission of the evidence "on the ground that the reception of the evidence was in someway validated after the event" (People v Liller, 26 AD2d 983, 985 [1966, Gibson,P.J., dissenting], revd on dissenting op 20 NY2d 727 [1967]). "Surely, however,it cannot be that defendant had to remain mute after the introduction, over his properobjection, of a mass of damaging and prejudicial evidence as part of the People's case"(People v Liller, 26 AD2d at 985). Defense counsel's decision to cast theimproperly admitted evidence in the best possible light for her client did not retroactivelyserve to justify its admission in the first place (see People v Liller, 20 NY2d 727[1967]).
Even assuming that the evidence of Gibson's murder was inferentially probative ofthe complainants' credibility, this finding by the trial court would only represent the firststep in the two-step determination. As previously noted, once the proponent of theevidence identifies "some material issue . . . to which the evidence isdirectly relevant . . . the trial court must weigh the evidence's probativevalue against its potential for undue prejudice to the defendant" (People v Cass,18 NY3d at 560 [citation omitted]).
Here, the Supreme Court failed to either evaluate the potential for undue prejudice tothe defendant or weigh it against the probative value of the evidence to the chargedcrimes. Indeed, "the record shows that the court ended its inquiry at relevance withoutaddressing those other important considerations" (People v Cortez, 22 NY3d at1080). This failure to exercise its discretion constituted error as a matter of law (seeid. at 1079; People v Williams, 56 NY2d at 239-240; People v Davis,44 NY2d at 276; People v Martinez, 253 AD2d at 776; People v Perkins,246 AD2d 608, 608 [1998]; People v Mitchell, 209 AD2d 443, 443-444 [1994];People v Celestino, 201 AD2d 91, 96 [1994]; People v Brown, 194 AD2d443, 444 [1993]; People v Moore, 156 AD2d 394, 394-395 [1989]).
In the event that the discretionary balancing had been performed by the trial court, oris performed post facto by this Court, any probative value resulting from an inferencethat could be made regarding the complainants' general credibility was vastly outweighedby the potential for undue prejudice to the defendant. In this regard, it has beenrecognized that "[t]here is an obvious, and unusual, potential for unfairness in allowing awitness whose credibility is under challenge to [*14]buttress his or her own credibility by attributing to thedefendant shocking criminal behavior on the claim that such behavior influenced thewitness to testify" (People v Beckles, 128 AD2d at 439). Accordingly, evenwhere a victim has explicitly testified that the defendant's commission of an unchargedcrime was the motivating factor behind his or her decision to come forward, it has beenheld that the probative value of such evidence was outweighed by the prejudice it wouldinflict on the defendant (see People v Park, 12 AD3d at 944; People vBeckles, 128 AD2d at 439). Under such circumstances, there is simply "nocompelling probative need for introducing evidence with such an enormous potential forprejudice" (People v Beckles, 128 AD2d at 439; see People v Park, 12AD3d at 944).
The People's contention that the defendant was not prejudiced by the evidence ofGibson's murder since he was not directly linked to that crime is without merit and beliedby the prosecutor's own comments during summation during which he utilized thetestimony that he had elicited on his direct case to urge the conclusion that the defendantwas responsible for Gibson's murder. In any event, the fact that the evidence did notdirectly link the defendant to Gibson's murder "resulted in an implicit invitation to thejury to speculate" that the defendant committed, or was responsible for, that crime(People v Rivera, 160 AD2d at 272). In this regard, the Court of Appeals hasnoted, "to the extent that the evidence of defendant's identity as the perpetrator of theuncharged crime is unclear . . . the case becomes a trial within a trial whichmay result in jury confusion" (People v Robinson, 68 NY2d 541, 550 [1986][footnote omitted]).
The recognized danger of subjecting a defendant to a trial within a trial was fullyrealized in this case. Far from completing the narrative of the events that transpired, theadmission of the evidence of Gibson's murder diverted the jury's attention from the actualcrimes charged and left the jury to speculate about the defendant's role in that shooting.The record demonstrates that the entire trial was so permeated with references andevidence relating to Gibson's murder that it became a mini-murder trial in and of itself.The jury was informed of Gibson's murder during jury selection and the prosecutorreferred to it in his opening statement, pointedly noting at one point that "[t]here's noevidence that you're going to hear that [the defendant] was anywhere near thatlocation" where Gibson was shot (emphasis added). No fewer than six witnesses testifiedabout Gibson's murder, a topic which filled over 100 pages of the trial transcript andwhich was raised on over 80 separate occasions throughout the course of the trial. Theprospect for jury speculation compelled the defendant to introduce evidence in anattempt to prove that he was innocent of the uncharged crime. The People were thenpermitted to attack the credibility of the individual convicted of the Gibson murder andto admit medical evidence pertaining to Gibson's gunshot wound. Finally, the prosecutor,in his summation, explicitly cultivated jury speculation and tacitly solicited the veryprejudice that the Molineux rule is designed to prevent, stating, among otherthings, "Why did this murder happen the weekend before the witness was supposed totestify? And this is the thing, you can speculate all you want . . . you can sayhey, [the defendant] reached out to three witnesses and a fourth one got killed on thatweekend, a person that [one of the complainants] said [the defendant] wanted to talkto."
The unfortunate manner in which the trial spun out of control was born of the trialcourt's error in permitting evidence of the uncharged crime to be admitted during thePeople's direct case. The impact of this error on the trial was not eliminated by the court'sinstruction to the jury that "this defendant . . . has not been charged withcausing the death of the witness Bobby Gibson. The People have introduced evidenceregarding Mr. Gibson's death for the purpose of explaining the state of mind of the threecomplainants . . . and to provide the background for their participation inthe witness protection program of the District Attorney's office." The instruction merelystated that the defendant had not been charged with Gibson's murder, therebyinviting retribution from the jury if it speculated that the defendant was responsible forGibson's murder, but had somehow avoided prosecution for that crime.
It is also notable that the jury was not instructed as to what limited purpose it coulduse the evidence of the uncharged crime (cf. People v Rivera, 160 AD2d at271-272). That limited purpose was far from apparent, as evinced by the People's laboredattempts to articulate justification for the trial court's ruling and the lengthy legal analysisnecessitated on this appeal.
[*15] Thetemptation to speculate as to the defendant's involvement in Gibson's murder must beoverwhelmingly evident to any reader of the facts of this case. As recognized by theCourt of Appeals in a similar context, "while it was not difficult to construct asuperficially convincing narrative based on this propensity driven supposition, it isprecisely such a carelessly constructed yet highly seductive narrative that theMolineux doctrine prudently excludes from a criminal trial" (People vCortez, 22 NY3d at 1071-1072 [Lippman, Ch. J., concurring]).
"[T]he more heinous the uncharged crime, the more likely that jurors will be swayedby it, and the difficulty faced by the defendant in seeking to rebut the inference which theuncharged crime evidence brings into play" (People v Robinson, 68 NY2d at549). The evidence that one of the complainants' fellow witnesses had been murdered"added facts involving the defendant and others in a web of activity which could only beconsidered by the jury reprehensible" (People v Stanard, 32 NY2d at 147). Theprejudice suffered by the defendant in this case cannot be distilled into a single trial errorgrounded in State evidentiary law or relegated to harmless error analysis, for it cascadedinto every facet of the trial and infected the very fabric of the process. Where, as here,trial error has "operated to deny an[ ] individual defendant his [or her] fundamental rightto a fair trial, the reviewing court must reverse the conviction and grant a new trial. . . without regard to any evaluation as to whether the errors contributed tothe defendant's conviction" (People v Crimmins, 36 NY2d 230, 238 [1975];see People v Mees, 47 NY2d 997, 998 [1979]). "Not only the individualdefendant but the public at large is entitled to assurance that there shall be fullobservance and enforcement of the cardinal right of a defendant to a fair trial"(People v Crimmins, 36 NY2d at 238). "The right to a fair trial is self-standingand proof of guilt, however overwhelming, can never be permitted to negate this right"(id.).
A defendant should only be compelled to defend against the crimes for which he wascharged. Accordingly, I vote to reverse the judgment and order a new trial on the countsof the indictment charging the defendant with bribing a witness.