People v Russell
Annotate this CaseDecided on January 24, 2012
County Court, Sullivan County
The People of the State of New York, Plaintiff, Noel Russell, Defendant.
176-2011
APPEARANCES: Eric J. Adler, Esq.
P.O. Box 1719
Monticello, NY 12701
Attorney for Defendant
Hon. James R. Farrell
Sullivan County District Attorney
LHC Sullivan County Courthouse
414 Broadway
Monticello, NY 12701
By: Jared K. Hart, ADA, of counsel
Attorney for the People
Frank J. LaBuda, J.
The People move, by order to show cause (OSC), for an order allowing the use of defendant's prior conviction of rape in the third degree from 2005 in their case in chief or, in the alternative, to use said prior conviction in cross examination of the defendant, if he takes the witness stand or in cross examination of defense witnesses through People v Molineux, 168 NY 264 (1901) and its progeny.
Defendant submits an affirmation in opposition.
The People submit a reply.
Defendant was charged with rape in the third degree in 2005, being 31 years old at the time, for having sexual intercourse with his sixteen year old sister-in-law. He pled guilty on June 22, 2005 and was sentenced to ten years felony probation on August 17, 2005.
Defendant is now charged by Indictment #176-2011 with a myriad of sexual crimes all regarding his biological daughter who was under twelve years old on the dates of the alleged sexual assaults and incests. [*2]
This Court granted a Molineux/Ventimiglia Hearing as part of defendant's omnibus motion before trial.
This Court held a Molineux/Ventimiglia Hearing on October 21, 2011 and rendered a decision on October 28, 2011 that the defendant's prior conviction for rape in the third degree could not be used in the People's case-in-chief, that defendant's prior rape conviction could be used on cross examination if the defendant took the witness stand but only for conviction purposes and not for the details of the conviction and could be not otherwise be used unless the defendant opened the door by putting motive, intent or common plan or scheme into issue.
The defendant was tried by a petit jury. Said trial resulted in a hung jury on December 14, 2011.
The People now move by OSC for an order of this Court to allow the use of defendant's prior conviction of rape in the third degree at re-trial as defendant opened the door to motive, intent or common plan or scheme at the original trial by attempting to impeach the credibility of the child victim.
The Molineux categories of intent, motive, knowledge, identity or common plan or scheme are points of inquiry for a court to consider in allowing prior convictions, bad acts or uncharged crimes to be used against a defendant but said list is not exhaustive. See, Molineux, supra.; People v Hudy, 73 NY2d 40 (1988); People v Lewis, 69 NY2d 321 (1987); People v Ventimiglia, 52 NY2d 350 (1981).
The Court must also consider whether the probative value of the evidence outweighs the prejudicial value. See, People v Short, 110 AD2d 205 (2nd Dept., 1985) lv denied 67 NY2d 657 (1986).
The People argue that the defense's cross examination of the victim child opens the door to the motive, intent or common plan or scheme of the defendant. That the opening of the door is based upon the similarities of the facts, intent, motion and common plan or scheme of the crimes herein to those of the rape in the third degree for which the defendant was convicted previously and, thus, his prior conviction should be allowed to be used against him in the People's case-in chief, to cross examine the defendant if he testifies or to cross examine other witnesses since the defense opened the door to his prior conviction.
This Court does not agree.
The testimony, found on pages 104 and 105 of the trial transcript, shows that the cross examination of the child victim regarding whether the witness ever lies and whether she knew of anyone, other than herself, who had been sexually abused. After answering no, the alleged victim was also asked if she had heard of anyone who was sexually abused. After answering no, the alleged victim was asked whether a certain person ever told her or her friends that a relative [*3]or friend of theirs was sexually abused. She answered no again.
The People argue that this line of questioning by the defense opens the door to the defendant's prior conviction of rape in the third degree regarding a sixteen year old relative.
The defense questioning does not inquire about the defendant's prior conduct regarding sexual crimes or about the defendant ever sexually abusing a relative or anyone else. Indeed, the defense questioning does not ask about the defendant at all. The questions were general questions regarding whether the alleged victim knew of anyone who had ever sexually abused another person. Her answer to all questions was no. This Court does not view this line of questioning by the defense as opening the door to any prior conduct of the defendant. The defense questioning was an attempt to show fabrication of the child victim.
Notwithstanding the above, even if the defense had opened the door at the first trial the defendant will be retried before a different petit jury which has not heard any testimony and no door opened or even knocked on.
This Court still views the defendant's prior conviction for rape in the third degree as having significant prejudicial effect over the probative value of the evidence equation unless the defendant takes the witness stand or the defense opens the door and places one or more Molineux categories at issue as written above.
Based upon the above, it is
ORDERED, that the portion of the People's Order To Show Cause seeking to use the defendant's prior conviction for rape in the third degree in their case-in chief under Molineux is denied, and it is further
ORDERED, that the portion of the People's Order To Show Cause seeking to use the defendant's prior conviction for rape in the third degree if the defendant takes the witness stand or puts one or more Molineux categories in issue during the re-trial is granted consistent with this Court's decision herein, and it is further
ORDERED, that this matter shall be scheduled for re-trial and jury selection on January 31, 2012.
This shall constitute the Decision and Order of this Court.
DATED: January 24, 2012
Monticello, New York
_______________________________ [*4]
Hon. Frank J. LaBuda
Sullivan County Court Judge
and Surrogate
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