People v Wood
Annotate this CaseDecided on May 2, 2012
County Court, Yates County
The People of the State of New York
against
Robert N. Wood, Defendant.
11-51
Hon. Jason L. Cook
Yates County District Attorney
(Megan P. Peter, Esq. of Counsel)
Counsel for the People
LaDuca Law Firm, LLP
(John J. LaDuca, Esq., of Counsel)
Counsel for the Defendant.
W. Patrick Falvey, J.
MEMORANDUM-DECISION AND ORDER
W. PATRICK FALVEY, J.C.C.
Defendant was indicted for two counts of Course of Sexual Conduct Against a Child in the Second Degree, a class D violent felony in violation of Penal Law §130.80(1)(b); two counts of Endangering the Welfare of a Child, a class A misdemeanor in violation of Penal Law §260.01(1); one count of Sexual Abuse in the Second Degree, a class A misdemeanor in violation of Penal Law § 130.60(2) and one count of Forcible Touching, a class A misdemeanor in violation of Penal Law § 130.52.
Defendant advised the Court by correspondence dated March 30, 2012 that he wished to waive his requested Huntley hearing, scheduled for April 3, 2012. In addition, the People on notice to the defendant, moved April 3, 2012, pursuant to People v. Molineux, 168 NY 264(1901), seeking a preliminary ruling pre trial on the admissibility of certain evidence in the nature of prior uncharged criminal acts in her case in chief.
The Court heard both applications on April 18, 2012, in the presence of the defendant.
HUNTLEY HEARING
The Court grants defendant's request to waive a Huntley hearing, regarding defendant's statements found in the CPL §710.30 notice dated October 18, 2011. The People, therefore, are not foreclosed from use of said statements at trial, subject to evidentiary issues such as admissibility and relevance.
MOLINEUX APPLICATION[*2]
By application dated April 3, 2012, the People ask the Court to allow them to provide proof regarding a camping trip on July 23 - July 24, 2011, in Schuyler County, in its case in chief. Essentially, this proof would be:
That the alleged victim, P.E., on July 23, 2011, went to Paradise Park Campground with the defendant, her sister, S.E. (dob 9/16/00), and two other minor females.
That P.E.'s mother, Candy Wood went to the campground to pick up S.E on July 24, 2011.
S.E. told her mother after they left the campground that she didn't feel good because she couldn't get to sleep because the camper was rocking.
S.E. told her mother that she went to the other end of the camper to ask the Defendant why it was rocking and he yelled at S.E. S.E. also told her mother that P.E. was in the room with the defendant.
Later that day Candy Wood asked the alleged victim what happened in the camper and P.E. disclosed the alleged on-going abuse.
The People ask that this proof be admitted: to show background information and/or about the nature of the relationship between P.E. and defendant; to complete the narrative/sort ambiguous but material facts; and/or to prevent the jury from speculating on how and why the victim disclosed. People cite People v Carey, 937 NYS 2d 809 (4th Dept 2012); People v Nelson, 871 NYS 2d 535 (4th Dept 2008); People v Cook, 675 NYS 2d 268 (4th Dept 1998); and People v Wilkinson, 892 NYS 2d 535 (2d Dept 2010).
The defendant opposes the application.
In determining a Molineux application, the Court must first determine whether the requested proof has probative value (a question of law), and then balance the probative value against the potential for prejudice. Prince, Richardson on Evidence (11th Ed., Farrell) §4-501 et seq.
"Ventimiglia motions usually focus on the relevancy and prejudicial impact of evidence of other wrongful conduct as supporting the inference of guilt. Sometimes evidence offered to prove guilt requires that the trier of fact be given additional information, potentially damning to the accused, that places other evidence in an understandable setting. "Richardson at §4-502.
If the court decides to admit the proof, then the jury should be instructed on the purpose for which it is being received, both when it is received, and again in the charge after summation. Richardson §4-502, citing People v Beam, 57 NY2d 249 (1982).
Richardson suggests that the trial judge, when making a preliminary ruling on the use of what may be prejudicial background evidence, should determine how to redact such evidence to blunt any excessive prejudice to the accused. Richardson §4-502. [*3]
In the case at bar, the evidence sought to be introduced is actually proof in a case in which the defendant has been indicted in Schuyler County involving the same alleged victim. Although the proof sought to be introduced is not actually proof of a crime, or even of a bad act, it might easily lead the jurors upon hearing this proof, to conclude or speculate that the defendant was committing a similar crime against the same victim when they were together in the same part of the camper and it was "rocking".
Thus, if the proof is admitted in the People's case in chief, it presents a Fifth Amendment issue. [Proof of unrelated pending charges is never permissible for impeachment purposes.Richardson §6-410, citing People v Bennett, 79 NY2d 464 (1992)]. See People v Carter, 50 AD3d 1318 (3rd Dept 2008), "The Court of Appeals has long held that 'a defendant-witness does not generally and automatically waive the privilege against self-incrimination as to pending collateral criminal charges' (People v Betts, 70 NY2d 289,294-295 [1987]." Carter at 1322.
So, it may be concluded that the People may not cross examine the defendant on the Schuyler charges, because he would be forced to invoke the 5th Amendment during such cross examination. But, the court may change this ruling if the defendant "opens the door" during his testimony, such as in People v Brown, 252 AD2d 598 (3rd Dept 1998).
At the argument of the People's motion on April 18, 2012, defense counsel conceded that if the People want to show that S.E. had a conversation with her mother, without specifying the details of that conversation, and then her mother confronted P.E., that would be fine.As defense counsel noted at the argument, the motive as to why Candy Wood confronted her daughter, P.E., on July 24, 2011, is not relevant proof in this case. What is relevant, is that she did confront P.E. and that in response to this confrontation, P.E. allegedly disclosed the on going abuse, for the first time. The defendant asserts that is when the narrative really began, with the mother, not S.E.
Allowing the People to present in evidence the testimony of S.E. as set forth above, would unfairly compromise the defendant's Fifth Amendment rights, regarding the pending Schuyler County Indictment, which is yet to be tried. Thus, under these circumstances, the Court denies the People's application to allow S.E. to testify in the People's case in chief regarding the Schuyler County camping trip. Instead, the People are permitted to question Candy Wood about how she came to confront P.E. on July 24, 2011, by stating that S.E. had spoken to her earlier that day, and this caused her to be concerned, and to confront P.E. The Court will instruct the jury at the time of receipt and again at the charge after summation that they are not to speculate as to what S.E. said, nor draw any inference unfavorable to the defendant, as it is only allowed to provide an explanation as to when and why P.E. reported the matter to her mother on July 24, 2011.
Further, to avoid a possible mistrial, the People must be sure the witnesses do not testify about any elements of the alleged crimes charged in Schuyler County, in their case in chief.
On the other hand, defense counsel may risk "opening the door" if he questions S.E. on what she told her mother; or cross examines Candy Wood and asks her about what S.E. said to her on July 24, 2011; or questions the defendant, if he chooses to testify, about facts related to the Schuyler County charges.
The foregoing constitutes the Opinion, Decision and Judgment of the Court.
SO ORDERED.
[*4]
Dated: May 2, 2012______________________________
W. Patrick Falvey
Yates County Judge
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