| People v Dowdell |
| 2015 NY Slip Op 08567 [133 AD3d 1345] |
| November 20, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vChristen Dowdell, Appellant. |
Phillips Lytle LLP, Buffalo (Spencer L. Durland 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 December 5, 2011. The judgment convicted defendant, upon a jury verdict, ofassault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: Defendant was convicted following a jury trial of assault in thesecond degree (Penal Law § 120.05 [3]) for causing physical injury to apolice officer who attempted to arrest him on a parole warrant inside a crowded bar. Thearresting officer broke a bone in his hand while punching defendant repeatedly in thehead and face, but only after defendant had punched him first and resisted arrest on thewarrant. Another officer joined the fray and defendant was eventually handcuffed andplaced under arrest. We conclude that Supreme Court made two erroneous evidentiaryrulings that deprived defendant of his right to a fair trial.
As a preliminary matter, we reject defendant's contention that the court erred inadmitting evidence of certain prior bad acts, i.e., possession of a handgun, scuffling witha police officer, and fleeing from another police officer. We conclude that the courtproperly admitted that evidence as necessary "background information to explain thepolice actions" in this case (People v Morris, 21 NY3d 588, 595 [2013]; seegenerally People v Tosca, 98 NY2d 660, 661 [2002]). Without the evidence inquestion, the jurors would have wondered why the arresting officer, who had personalknowledge of the prior bad acts, felt it necessary to assemble 20 police officers to arrestdefendant on the parole warrant inside the bar.
We agree, however, with defendant's further contention that, although the courtproperly permitted the People to present evidence of the fact that he was on parole at thetime of his arrest, the court erred in permitting the People to detail that he was on parolefor a conviction of attempted criminal possession of a controlled substance in the thirddegree. The specific crime of which defendant was convicted does not constitutenecessary background information, and it does not fit within any other recognizedexception to the Molineux rule, i.e., motive, intent, identity, absence of mistake,or common plan or scheme (see generally People v Allweiss, 48 NY2d 40, 46-47[1979]).
In addition, we agree with defendant that the court erred in ruling that defensecounsel opened the door to the admission of additional evidence of uncharged crimes andprior bad acts that the court had initially precluded by an earlier determination. Duringhis direct examination, the arresting officer testified without objection that he had seendefendant more than "a hundred times" prior to the night in question, and that he hadbetween 50 and 75 interactions with defendant. On cross-examination, defense counselasked the officer whether he had prepared Field Information Forms (FIFs) with respect tohis interactions with defendant, as purportedly [*2]required by a general order of the Rochester PoliceDepartment, and the officer answered that he had not, but with an explanation. Upon thePeople's request, the court thereafter allowed the officer to testify on redirect examinationas to the specific nature of his interactions with defendant, ruling that defense counselhad opened the door to such evidence. The officer then testified to various illegalactivities in which he believed defendant to have been engaged at the time of thoseinteractions.
Contrary to the People's contention, defense counsel did not challenge oncross-examination the officer's credibility on the issue whether such prior interactionswith defendant took place, thereby permitting the officer to fully explain the nature of theinteractions (see generally People v Melendez, 55 NY2d 445, 451-452 [1982];People v Regina, 19 NY2d 65, 78 [1966]). Instead, the record establishes thatdefense counsel's line of questioning about the FIFs was meant to show the jury that theofficer failed to follow proper police procedure with respect to his prior interactions withdefendant, which supported the overall defense theory that the officer failed to followproper police procedure when he arrested defendant on the parole warrant. Because theofficer explained on cross-examination why he did not complete FIFs with respect to hisprior interactions with defendant, the court erred in ruling that defense counsel openedthe door to further explanation of the interactions on redirect examination (see generally People vJohnson, 51 AD3d 508, 509 [2008], lv denied 11 NY3d 738 [2008]; People v Ramos, 27 AD3d1073, 1074 [2006], lv denied 6 NY3d 897 [2006]).
Finally, we conclude that the above two errors cannot be deemed harmless inasmuchas the proof of guilt was not overwhelming (see generally People v Grant, 7 NY3d 421, 424 [2006];People v Crimmins, 36 NY2d 230, 241-242 [1975]).
In light of our determination, we need not address defendant's remaining contentions,none of which, if meritorious, would result in dismissal of the indictment.Present—Centra, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.