People v Rhinehart

[*1] People v Rhinehart 2006 NY Slip Op 51488(U) [12 Misc 3d 1188(A)] Decided on July 22, 2006 Justice Court Of Town Of Lockport, Niagara County Tilney, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 14, 2006; it will not be published in the printed Official Reports.

Decided on July 22, 2006
Justice Court of Town of Lockport, Niagara County

The People of the State of New York

against

Richard N. Rhinehart, Defendant



06070058/06050215



People of the State of New York

Hon: Matthew J. Murphy III

Susan Bjornholn of counsel

Defendant Richard N. Rhinehart

Muscato, Dimillo & Vona

George V.C. Muscato of counsel

Leonard G. Tilney, J.

Defendant has been charged with the crimes of forcible touching and sexual abuse in the third degree arising out of an incident, which occurred at his place of work involving a female co-employee. The matter was set down for a non-jury trial on July 13, 2006. On July 11, 2006 the People faxed a motion to the court and defense counsel seeking pretrial Ventimiglia (People v. Ventimiglia 52 NY2d 350) and Sandoval (People v. Sandoval 34 NY2d 371) rulings. The People request to be permitted to place in their Case-in-Chief evidence of uncharged crimes or bad acts of the defendant and to be allowed to cross examine the defendant regarding those alleged bad acts if he chooses to take the stand. Relief to question the defendant on [*2]his prior conviction is not stated in the People's written motion but was address at oral argument before the court.

People's Position - People v. Alvino 71 NYS2d 233 sets governing rules to allow bad acts/uncharged crimes into evidence; People v. Molineaux 168 NY 264 allows this type of information to be used to establish intent, identity, motive and absence of mistake; and Sandoval, supra allows cross examination on prior convictions.

Defendant's Position- The allegations of prior bad acts are highly prejudicial and out weigh any probative value; the alleged acts are too remote; the alleged acts do not show intent; and the defendant admits contact so identity is not an issue.

Decision

Molineaux Alvino Issue

The People have attached to their boiler plate papers (whose notice initially was addressed to Niagara County Court in January of this year) one conviction from the Town of Newfane Court for Sexual Abuse in the third degree (6/13/1994 sentence complainant Theresa L. Rogers) and three other charges of Sexual Abuse in the third degree involving Tracey Mularz, Vicki Mularz and Sharon Pollock. The supporting affidavit of the assistant district attorney refers to a youthful offender conviction and that the defendant is female (paragraphs 18 and 21 of said affidavit). In any event the court must rule on two questions: Can the People use evidence of the Rogers conviction and the allegations of Pollock and the Mularzs in their direct case? Can the People cross exam the defendant on those "bad acts" and conviction should he take the stand?



A Prime directive of the Anglo-American criminal justice system is that all efforts ought to strive to arrive at an objectively accurate resolution of the factual dispute underlying every trial. People v. Alvino, 71 NY2d 233, 241, 525 NYS2d 7, 11-12 (1987) and People v. Lewis, 69 NY2d 321, 325, 514 NYS2d 205, 207 (1987). This directive led to a general rule of the law of evidence; namely, that all relevant evidence is admissible and all irrelevant evidence is inadmissible. The system has tinkered with two aspects of this rule in order to fine-tune the validity of trial results. Case law has addressed the proper meaning of various definitions (what is "truth," what is "relevancy," and the like). It has also addressed various policy issues, in an attempt to arrive at what is "fair" (that is, what should or should not be in order to promote some perceived public policy goal deemed meritorious).

One such public policy goal (really an exception to the general rule admitting all relevant evidence) is the prohibition against the prosecution introducing the prior uncharged criminal and other bad acts of the defendant in their direct case merely to prove predisposition to commit crime. People v. Molineux, 168 NY 264, 291-2, 61 NE 286 (1901); People v. Allweiss, 48 NY2d 40, 46-7, 421 NYS2d 341, 344 [*3]{48 NY2d 40} (1979) distinguished on other grounds at People v. Mateo, 93 NY2d 327 (1999); and People v. Ventimiglia, 52 NY2d 350, 359, 438 NYS2d 261, 264 (1981). The nature of the inference to be avoided is that the defendant has done bad things; therefore he is a bad man and is "characterologically" prone to have done other bad things, including the offense with which he is charged. People v. Alvino, 122 AD2d 666, 671-2, 505 NYS2d 868, 871-2 {122 AD2d 666} (1st Dept 1986) [dissenting opinion] reversed on other grounds at 71 NY2d 233. It is not that a man's character is irrelevant to his conduct. Rather, evidence of character may seem to prove too much, its admission raises the possibility that a defendant will be convicted not because he is proven beyond a reasonable doubt to have committed the crime charged, but because his history generally shows him to be a bad sort deserving of moral condemnation and punishment. The rule excluding evidence of uncharged crimes is based upon the human tendency more readily to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime. It is a rule intended to eliminate the danger that a jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged. It is to protect the defendant against a conviction rooted in broad prejudice as opposed to proof of the particular illegality involved that the rule exists. People v. Fiore, 34 NY2d 81, 84, 356 NYS2d 38, 41 (1974); People v. Cook, 42 NY2d 204, 208, 397 NYS2d 697, 699 (1977); People v. Sudler, 100 AD2d 915, 196, 474 NYS2d 575, 576-7 ( 2nd Dept 1984); People v. Lewis, 69 NY2d 321, 325, 514 NYS2d 205, 207 ( 1987); and People v. Gautier, 148 AD2d 280, 284, 544 NYS2d 821, 823 (1st Dept 1989).

Notwithstanding the rule's importance, it admits of exceptions. These are allowed where on balance the probative value of the evidence of prior misconduct outweighs the potential for prejudice. The rule is not in the main to assure relevancy, but to prevent prejudice. The operation of the rule assumes some degree of relevancy; otherwise the evidence would be excluded on relevancy grounds alone. It follows that, to be admitted, evidence of a defendant's prior bad activity must be more than simply relevant or probative. It must be relevant in some specific way, it must be necessary, it must relate to an issue actually contested in the trial, and it must not be unfairly prejudicial. Alvino (1986), supra , at 672/873.

The court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue [*4]upon which it is offered, that it is offered on an issue material to the prosecution's case, and is not merely cumulative (i.e., that it is necessary). Ventimiglia, supra , at 360/264.

Because there is a special risk of prejudice attaching to prior uncharged crime evidence, where its admission in not necessary to the People's proof, it should be excluded, since its probative value is by hypothesis slight when compared with the possibility for prejudice.

It is incumbent upon the proponent of the evidence to establish to the court's satisfaction that the evidence of uncharged crimes is relevant, necessary, and affecting an element truly in issue in the trial. Even should these three preliminary requirements be satisfactorily demonstrated, the court must then take the further step of weighing the balance between the probative value of such evidence against the risk of undue prejudice to the defendant. Only if the court determines that balance to be appropriately tipped in favor of the probative value of the evidence may it be admitted.

This court is well aware of the Court of Appeals ruling in People v. Cook 93 NY2d 840 (1999) which involved a Niagara County Court case appeal allowing prior uncharged crimes being admitted in a sexual assault case. Likewise the various departments seem to allow the admissibility prior uncharged crimes [see, People v. Castro, 281 AD2d 935 (4th Dept 2001), People v. Brown, 24 AD3d 812 (3rd Dept 2005) and People v. Melendez, 8 AD3d 680 (2nd Dept 2004)]. However all of these cases involve prior bad acts which "complete the story" or "round out the narrative" in sex cases, which involve the defendant's relationship with the complainant, something that is missing in this case. Likewise, all the cases still required this court to balance the probative value of the evidence against the potential for prejudice to the defendant.

The present case is a non-jury trial and this court will sit as the trier of fact. As such the "cat is out of the bag" in as much as the trier of fact now has knowledge of the defendant's prior conviction and alleged bad acts. The court does not believe bringing the ladies involved in 1993-1994 incidents to tell the court what part of their anatomy was allegedly touched by the defendant has any probative value. The court does not wish to embarrass these ladies in open court or make them [*5]relive something which happened thirteen (13) years ago. In addition the court finds it would be too prejudicial to the defendant to do so not because a jury maybe swayed away from the People's burden of proof (as no jury will exist) but because it will in effect create the necessity for the defense to prepare for and try the three uncharged crimes. Accordingly, the court denies the People's request to admit in their direct case this evidence of prior bad acts or the defendant's prior conviction. The parties are reminded however that even the otherwise disallowed evidence might readily be utilized in the event the defendant opens the door to such information during this trial. Ventimiglia, supra , at 360; People v. Smeraldo, 242 AD2d 886, 662 NYS2d 883, 884 (4th Dept 1997); and Funderbird, supra , at 499. Also see People v. Gross, 74 AD2d 701, 702, 426 NYS2d 118, 120 (3rd Dept 1980). While that doctrine of door opening is not liberally interpreted; if it truly arises, upon a proffer or request made by the People, the court will entertain permitting the prosecution to use the evidence.

Sandoval Issue

Defendant's 1994 conviction of sexual abuse in the third degree certainly evinces a willingness to place his self-interest ahead of the principles and interests of society and is not per se remote. People v. Scott 12 AD3d 1144 (4th Dept 2004). On the other hand, insofar as the offense may evince a propensity toward sexual exploitation, the People will be permitted to inquire only as to the fact of conviction, grade of offense and sentence received, without inquiry into the nature of the offense and/or the underlying facts. People v. Hayes, 97 NY2d 203 (2002).

The Defendant may also be cross-examined regarding his prior bad acts which bear on credibility, veracity or honesty People v. Schwartzman, 24 NY2d 241 (1969).

July 22, 2006______________________________

Hon. Leonard G. Tilney, Jr.

Lockport Town Justice