| People v Brewer |
| 2015 NY Slip Op 05329 [129 AD3d 1619] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimothy Brewer, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Brian Shiffrin of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered October 4, 2010. The judgment convicted defendant, upon a jury verdict, ofpredatory sexual assault against a child (two counts) and sexual abuse in the first degree(two counts).
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him, following a jury trial, oftwo counts each of predatory sexual assault against a child (Penal Law§ 130.96) and sexual abuse in the first degree (§ 130.65 [3]),defendant contends that Supreme Court erred in allowing his former girlfriend (hereafter,witness) to testify at trial regarding the peculiar manner in which the couple engaged inconsensual oral sex. We reject that contention. The charges arose from allegations thatdefendant, among other things, forced the two victims, ages nine and seven, to performoral sex on him inside his apartment. The victims were the daughters of the witness, wholived with defendant at the time. One of the victims alleged that, while she performedoral sex on defendant, he was smoking crack cocaine and had his T-shirt pulled over hishead. The other victim alleged that she was forced to perform oral sex on defendant inhis bedroom closet, which he referred to as the "bat cave."
Prior to trial, the People filed a written "Molineux Proffer" seekingpermission from the court to admit direct evidence at trial regarding defendant's frequentuse of crack cocaine in the home, and his "unique habit of pulling his t-shirt over hishead and securing it behind his neck, then zipping down his pants and receiving oral sex"while he smoked crack cocaine. According to the People, defendant engaged in suchconduct with several women, including the witness, who was prepared to testify to thateffect at trial. Defense counsel opposed the application on the ground that the evidencewas more prejudicial than probative. The court granted the application withoutexplanation, and the witness subsequently testified at trial that she frequently performedoral sex on defendant in the "bat cave" while he smoked crack cocaine and had hisT-shirt pulled over his head. She further testified that she witnessed defendant engagingin that same conduct in the "bat cave" with another woman. According to the witness, thevictims were not allowed in defendant's bedroom, and therefore could not see any of thesexual activity taking place there or in the adjacent closet. Defendant testified at trial anddenied the allegations. He acknowledged, however, that he had been addicted to crackcocaine, and that he sometimes smoked it in the "bat cave" while receiving oral sex withhis T-shirt pulled over his head. The jury rendered a guilty verdict on all four counts ofthe indictment.
It is well settled that "evidence of uncharged crimes is inadmissible where its purposeis only to show a defendant's bad character or propensity towards crime" (People v Morris, 21 NY3d588, 594 [2013] [emphasis added]). Stated otherwise, the rule is that, "if the onlypurpose of the evidence is to show bad character or propensity towards crime, it is notadmissible" (People v Alvino, 71 NY2d 233, 241 [1987]). Here, as a preliminarymatter, we note that evidence of defendant's [*2]so-called"sexual proclivities" does not constitute Molineux evidence because it wasneither a crime nor a prior bad act for him to receive consensual oral sex from an adult ina closet with his T-shirt pulled over his head. The only evidence of an uncharged crimeor prior bad act concerned defendant's use of crack cocaine, which was not overlyprejudicial to him in the overall context of the trial given that he was not charged withany drug offenses. In any event, the evidence was not proffered only to show defendant'sbad character or propensity toward crime; rather, the stated purpose of the evidence wasto corroborate details of the victims' testimony. As the prosecutor argued in hersummation, the victims would not likely know of defendant's sexual proclivities unlessthey were sexually abused by him.
To the extent that defendant contends that the evidence is inadmissible on relevancygrounds, that contention is unpreserved for our review (see CPL 470.05 [2]). Inany event, we reject that contention. "Evidence is relevant if it has any tendency in reasonto prove the existence of any material fact, i.e., it makes determination of the action moreprobable or less probable than it would be without the evidence" (People vScarola, 71 NY2d 769, 777 [1988]). Here, the evidence was relevant because, asnoted, it tended to show that the victims were abused in the manner they alleged.
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Scudder, P.J., Smith, Carni, Lindley and DeJoseph, JJ.