| People v Wisdom |
| 2014 NY Slip Op 05909 [120 AD3d 724] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Sidney Wisdom, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and AnnBordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Dowling, J.), rendered October 30, 1997, convicting him of attempted murder in thesecond degree (two counts), burglary in the first degree, and endangering the welfare of achild, upon a jury verdict, and imposing sentence. By opinion and order dated July 11,2012, this Court reversed the judgment, on the law, granted the defendant's motion todismiss the indictment pursuant to CPL 210.20 (1) (c) and 210.35 (5), and granted thePeople leave to resubmit the charges to another grand jury (see People v Wisdom, 98AD3d 241 [2012]). On June 5, 2014, the Court of Appeals reversed the opinion andorder of this Court, reinstated the judgment of conviction, and remitted the matter to thisCourt for consideration of the facts and issues raised but not determined on the appeal tothis Court (see People vWisdom, 23 NY3d 970 [2014]). Justice Lott has been substituted for formerJustice Florio (see 22 NYCRR 670.1 [c]).
Ordered that, upon remittitur from the Court of Appeals, the judgment isaffirmed.
On January 31, 1996, the complainant and her four-year-old granddaughter wereattacked in the complainant's apartment. Subsequently, the defendant was arrested inconnection with the incident. During trial, the court admitted into evidence testimonyfrom a daughter of the complainant regarding the course of her relationship with thedefendant. The witness testified that she had helped the defendant when he was "downon his luck," but that he became increasingly abusive to her, displaying a jealousy about aperceived relationship that did not exist between them. The witness's testimonyrecounted, among other things, the defendant's stalking behavior and two attacks thedefendant committed on her before the attack against her mother and niece. The courtadmitted the evidence as relevant to the defendant's motive, intent, and "factualbackground" of the case. On appeal, the defendant contends that the witness's testimonyregarding his uncharged acts against her should not have been admitted. He argues thatthe testimony was not relevant for a proper purpose, but only on the improper issue of hispropensity to be violent. Further, he contends that even if the evidence was relevant to aproper purpose, the prejudicial effect far outweighed any probative value. Wedisagree.
Evidence of uncharged crimes is, under the Molineux rule (see People vMolineux, [*2]168 NY 264 [1901]), inadmissible ifits only purpose is to prove the defendant's propensity to commit crimes (see People v Harris, 117 AD3d847, 854 [2014]). Nonetheless, evidence of uncharged crimes may be admissibleunder the Molineux rule if the evidence is admissible for a proper purpose (see People v Gamble, 18 NY3d386, 397-398 [2012]). When a court is asked to admit evidence of a defendant'suncharged crimes, the court must first determine whether, as a matter of law, theevidence is probative on a relevant and material issue. If it is, the court must balance theprobative value and need for the evidence against the likelihood for prejudice (see People v Leeson, 12 NY3d823, 826-827 [2009]; People v Alvino, 71 NY2d 233, 242 [1987]; People v Wilkinson, 71 AD3d249, 254-255 [2010]).
In this case, the evidence of the defendant's uncharged crimes against thecomplainant's daughter was relevant and probative as to the defendant's motive tocommit the charged crimes against the complainant and her granddaughter, and to givethe jury an appropriate context in which to evaluate the case. Accordingly, it was notinadmissible as a matter of law. Further, the court did not improvidently exercise itsdiscretion in admitting the evidence regarding the complainant's daughter, because theprobative value and need for it outweighed the potential for unfair prejudice. Thecomplainant had told the defendant at one point that he was not welcome in her home.This perceived slight could not have explained the depth of the anger evinced by thebrutality of the defendant's attacks on the complainant and her four-year-oldgranddaughter. The evidence of uncharged crimes against the complainant's daughtermade clear to the jury that the defendant's rage began against the complainant's daughterand arose from his relationship with her, rather than from anything the complainant hadsaid to the defendant (see People v Gamble, 18 NY3d at 392; People v Dorm, 12 NY3d16, 18-19 [2009]; People v Wilkinson, 71 AD3d at 255). Without thatevidence, the jury would have been deprived of necessary context with respect to thecrimes and the defendant's reason for committing them.
The defendant next contends that it was improper for the court to permit thecomplainant's daughter to testify on redirect examination that she was told shortly afterthe attacks that the defendant had tried to kill her mother and niece. The defendant'scontention is, in part, unpreserved for appellate review (see CPL 470.05 [2]). Tothe extent that the issue is preserved, it is meritless. During cross-examination, defensecounsel questioned the witness about why she was able to remember the day before theattack. This opened the door to the challenged testimony, which was elicited on redirectexamination to explain why the witness was able to remember seeing the defendant infront of her home the day before her mother and niece were attacked (see People v Barcero, 116AD3d 1060, 1061 [2014]). It was not elicited for the purpose of identifying thedefendant as the assailant. Accordingly, the testimony was not inadmissible hearsay (see People v Kass, 59 AD3d77, 85-86 [2008]). Moreover, the defendant failed to request that the court instructthe jury as to the proper use of that testimony. Any error in the court's failure to suasponte issue a limiting instruction was harmless. The evidence of the defendant's guiltwas overwhelming and there was no significant probability that the defendant wouldhave been acquitted had the court given a limiting instruction with respect to thisevidence. Moreover, the absence of a limiting instruction did not deprive the defendantof a fair trial (see People v Crimmins, 36 NY2d 230 [1975]). Mastro, J.P., Balkin,Chambers and Lott, JJ., concur.