ALBANY – In a case highlighting the potential pitfalls of allowing a jury in a domestic violence case to hear evidence of prior uncharged offenses, an upstate appeals court has ordered a new trial for a man convicted of assaulting his wife by making her drink herself into a stupor.
The Appellate Division, Third Department, ruled that since the evidence of Robert Elmy’s guilt was not overwhelming, references to reports of past violence against his wife, Patricia Elmy, may have prejudiced the jury against him as it deliberated in 2012 on second-degree assault and other charges.
The 4-0 ruling came Thursday in People v. Elmy, 105050.
Robert Elmy had no criminal record prior to being arrested for assaulting his wife, according to Elmy’s appellate lawyer, Paul Connolly of Delmar. He said a retrial of his client, who has served two years of his sentence, could be complicated by the fact Patricia Elmy died in October 2012 of liver failure related to alcoholism.
Even though the uncharged prior abusive acts alleged against Robert Elmy may have fallen into the exceptions recognized under People v. Molineux, 168 NY 264 (1901), the Third Department ruled that “the record failed to reflect that county court balanced the probative value of such evidence against its prejudicial effect.”
Justice John Egan Jr. (See Profile) wrote that Washington County Judge Kelly McKeighan (See Profile) failed to give the “appropriate limiting instructions” to the jury, either when Patricia Elmy testified or during his final instructions to jurors.
Egan said that the absence of such instructions “clearly impacted the jury’s deliberations,” reflected in the fact that, at one point, they asked the judge whether the coercion charge against Robert Elmy encompassed only the allegation of his having forced his wife to excessively drink alcohol or could have entailed the charges she made during her testimony that he forced her to have sex against her will.
Prosecutors filed a written Molineux application seeking permission to use evidence of alleged abuse in the two weeks prior to Robert Elmy’s arrest for assault.
But the appeals court said McKeighan, after holding a hearing, never expressly ruled on the purpored offenses at issue.
Elmy’s defense attorney at trial, Brian Breedlove of Breedlove & Noll in Clifton Park, repeatedly objected as Patricia Elmy made references from the stand to suffering repeated violence at the hands of her husband, including his demands for unwanted sex.
Egan wrote that courts have to be wary of potential Molineux violations in domestic violence cases, as prior bad acts “are more likely to be considered relevant and probative evidence, because the aggression and bad acts are focused on one particular person” and can reflect the defendant’s “intent, motive, identity and absence of mistake.”
Elmy brought his disoriented wife into Glen Falls Hospital on Oct. 10, 2011. Doctors discovered an acute hematoma on her brain. A blood clot was later removed during emergency surgery at Albany Medical Center.
Medical tests indicated that Patrica Elmy’s blood alcohol level was 0.40 percent, or five times the standard for drunken driving. She told authorities that Robert Elmy had repeatedly assaulted her in the days leading up to Oct. 11 at their apartment and forced her to drink beverages including SoBe Lifewater and V8 Fusion that he mixed with strong portions of vodka.
Elmy was convicted of a violation of Penal Law §120.05, which provides for the crime of second-degree assault for causing “stupor, unconsciousness or other physical impairment or injury” by using a “drug, substance or preparation.” He was sentenced to 21/2 years in prison. He was acquitted of coercion and unlawful imprisonment.
The appeals court rejected Robert Elmy’s contention that he intentionally gave his wife, an alcoholic, vodka in an attempt to force her to go to the hospital to seek treatment for her addiction.
Even accepting the premise of Elmy’s argument that alcohol is not a “drug” or a “substance” within the meaning of the assault statute, the court said Elmy had no medical training and was engaged in an activity he knew was extremely dangerous.
Elmy had claimed his wife’s head injuries were caused by falls she took while intoxicated.
“He was doing the best he could for her,” Connolly said in an interview Monday. “I am persuaded that this guy was not trying to harm her in any way at all. He was just trying to help her. He was dealing with a severe alcoholic. He couldn’t cut off the alcohol entirely. That would have had more deleterious effects.”
Assistant Washington County District Attorney Devin Anderson, who argued the appeal, said Monday that Washington County District Attorney Tony Jordan has not yet decided on whether to retry Elmy.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.