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More than a century after the New York Court of Appeals decided People v. Molineux — its seminal case on the admissibility of uncharged crimes — courts are still grappling with its implications, as evidenced by two split decisions last week from the Appellate Division, 3rd Department. The justices were divided 4-1 in unrelated drug and sexual abuse cases. The department affirmed the drug conviction in an opinion by Justice Anthony J. Carpinello, and reversed the sexual abuse conviction in a decision where Carpinello dissented. Together, the cases illustrate a continuing struggle to weigh the probative value of admitting evidence of uncharged crimes against the prejudicial impact — a balancing test compelled by Molineux, 168 NY 264 (1901). Despite the passage of 104 years, Molineux remains the benchmark as, in the words of Court of Appeals Judge Albert M. Rosenblatt, it has “never become calcified or brittle” (see People v. Enrique Rojas, 97 NY2d 32 [2001]). People v. Torres, 14907, hails from Schenectady County, where the defendant was convicted of possessing and selling heroin. Court records show that Angel Torres Jr. was the target of a buy-and-bust operation involving the State Police and the Schenectady City Police. Undercover agent Fernando Ortego approached the defendant on the steps of a church, inquired about drugs and was allegedly sold $25 worth of heroin. Shortly thereafter, Ortega’s partner approached Mr. Torres and made a similar deal. The defendant was charged in connection with the transaction involving Ortego, but not the one orchestrated by his partner. At trial, Acting Supreme Court Justice Guy P. Tomlinson of Montgomery County, N.Y., permitted the prosecution to introduce evidence of the second, uncharged transaction in order to establish the defendant’s identity. Mistaken identity was the sole defense. Carpinello said the evidence was appropriate, citing several cases that say evidence of “an uncharged, contemporaneous drug transaction can properly be admitted.” Here, Carpinello said Tomlinson artfully balanced Molineux concerns by refusing to permit the prosecution to refer to the second transaction in its opening and by carefully instructing and charging the jury on the scope of the evidence. “[W]e find that County Court did properly weigh the probative value of the second sale against its prejudicial effect,” Carpinello wrote. He was joined by Presiding Justice Anthony V. Cardona and Justices D. Bruce Crew III and Anthony T. Kane. Justice Carl J. Mugglin dissented on Molineux grounds. Mugglin noted that Torres was not disguised and was seen face-to-face by the undercover officers in broad daylight. He said the defendant was identified at the scene and during trial. “Given this overwhelming evidence of identity, even where misidentification is asserted as a defense, evidence of uncharged criminal conduct has so little probative value on the issue of identity as, in my view, to be inadmissible,” Mugglin wrote. The dissenter said evidence of the second sale demonstrated a propensity to commit the charged crime. He said the admission of the disputed evidence left Torres “with the unpalatable choice of leaving the evidence unrefuted or taking the stand and being subjected to cross-examination.” Carey Ann Denefrio, a law intern with the Schenectady County, N.Y., District Attorney’s Office, represented the prosecution. Carl J. Silverstein of Monticello, N.Y., appeared for the defendant. SEX ABUSE MATTER People v. Reilly, 15072, comes from Broome County, N.Y., where the defendant was convicted of first-degree sexual abuse and forcible touching. In that case, a woman awoke in her bedroom to find a man molesting her. After ejaculating on the woman’s nightgown, the culprit fled. The victim later found a ladder placed against her house and leading to a window where the screen had been removed. DNA analysis of the semen on the woman’s nightgown matched the defendant’s DNA. At trial, Broome County Judge Martin E. Smith allowed the prosecution to admit evidence of a subsequent incident in which defendant Gerald B. Reilly was found standing on a cinder block and peeking into another woman’s bedroom a few houses down from the victim’s. The evidence was offered by the prosecution, and accepted by the court, to show modus operandi. “Evidence of defendant’s peeping incident was relevant only for the improper purposes of lending credibility to the victim’s version and indicating a propensity for defendant to engage in voyeurism and sexual misconduct,” Kane wrote for the majority. “Because evidence of this subsequent incident was not highly probative of intent and was extremely prejudicial, it was improperly admitted.” Joining Justice Kane were justices Crew, Mugglin and John A. Lahtinen. Carpinello dissented. He observed that Reilly admitted climbing through the victim’s window and ejaculating on her nightgown, but claimed the encounter was consensual. Since the only disparity between the victim’s and defendant’s version was whether the encounter was consensual, Carpinello said evidence of the subsequent incident was necessary to establish “an inference of guilty knowledge.” “Having essentially admitted all of the conduct as alleged by the People but contesting only his ‘innocent intent,’ defendant’s subsequent conduct was not only relevant but highly probative and thus properly admitted under People v. Molineux,” Carpinello wrote. Teresa C. Mulliken of Harpersfield, Broome County, argued for the defendant. Broome County Assistant District Attorney Benjamin K. Bergman appeared for the prosecution.

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