People v Harrell

[*1] People v Harrell 2012 NY Slip Op 51363(U) Decided on July 23, 2012 Supreme Court, Kings County Riviezzo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 23, 2012
Supreme Court, Kings County

The People of the State of New York

against

Rashawn Harrell



8181/2010



For the People:

Leila C. Rosini

Assistant District Attorney

350 Jay Street

Brooklyn, New York 11201

(718) 250-3889

For the Defendant:

Mario D. Romano

Attorney for Defendant

8118 13th Avenue

Brooklyn, New York 11228

(718) 238-1144

Dineen A. Riviezzo, J.

The People move for an order permitting the use at trial of a prior crime to establish the identity of defendant under People v Molineux (168 NY 264, 293, 61 NE 286 [1901]).

FACTS

The defendant is accused under Ind. No. 8181/2010 of committing burglary in the first degree and other crimes arising from an incident which occurred on September 13, 2010, at approximately 8:00 am at 282 Schaeffer Street in Bushwick, Brooklyn. The People allege that defendant and an accomplice Rasheen McDowell (who was separately indicted and pleaded guilty under Ind. No. 5266/2011 to robbery in the second degree), both of whom were unmasked, pushed the victim from the front stoop into the vestibule of the building, that defendant pistol-whipped the victim, and that defendant and his accomplice punched her, knocking out her teeth. Defendant ripped a chain from the victim's neck; the attack ended only when the victim's son returned home, and defendant and his accomplice fled.

The People now seek to admit under Molineux, as proof of identity, a prior crime allegedly committed by defendant. In this prior incident, which occurred at 1400 Putnam Avenue on September 11, 2010, defendant, Rasheen McDowell (the same accomplice who pleaded guilty to the September 13, 2010 robbery), and another person, all of whom were [*2]unmasked, allegedly pushed their way into an apartment belonging to Eddie Martinez; defendant allegedly displayed a gun and allegedly struck Eddie Martinez in the head; and the perpetrators took money and a cell phone and fled. Co-defendant Rasheen McDowell pleaded guilty to robbery in the second degree in connection with this incident under Ind. No. 8194/2010.

Defendant was identified by Mr. Martinez and another witness as one of the perpetrators of the September 11, 2010 crime "as a person they knew." Both persons identified the defendant in photo arrays, but then "refused," according to the assistant district attorney, to pick anyone out of a lineup. According to the Assistant District Attorney, "They later recanted their identifications to an Assistant District Attorney in this office."

Nevertheless, the People now seek to establish that defendant was in fact responsible for the September 11, 2010, crime based on additional evidence — namely, defendant's statements in a tape-recorded prison phone call, in order to employ the other crime evidence as evidence of defendant's identity under Molineux.

The taped phone call was placed by defendant on September 17, 2010, from Rikers Island. It is not disputed by defendant that the person identified as the "caller" is the defendant's uncle. The transcript submitted by the District Attorney's office of the phone conversation reflects the following:

Caller: Aight. Yo listen, your moms told me. You still with that n***a um R-dot?

Deft.: Yeah

Caller: Ya'll in the same crib?

Deft.: Yeah

Caller: Oh, word your mom's told me don't worry about that n***a, I'm not worrying about that n***a until you come home. You come home then we'll worry about trying to get him out. But we're not gonna be worrying about trying to get him out when ya'll cases are different.

Deft.: Yeah

Caller: So f*ck him

Deft.: She, she know about that other thing though?

Caller: What other thing?

Deft.: About, the sh*t that R-Dot did...allegedly did.

Caller: What R-Dot? Huh?

Deft.: The sh*t that uh, went down on Putnam

Caller: Yeah she know about that Shawn

Deft.: Who told her?

Caller: Shawn, who you think told her?

Deft.: Why ya'll n***as told her for?

Caller: Because son, that's your moms son, we can't hold sh*t from her dog, come on son. She's over here lost in the sauce worried about her son dog so we cannot do...So I don't give it up like that dog. I just don't. You f*cked up by going into that crib bare faced dog.

Deft.: Huh?

Caller: I said you f*cked up. You f*cked up by having your mans do whatever they did and then put you involved in it.

Deft.: I feel you but so she thinks...So you told here I did it, aight. So what she talkin about that like, what's going on?

[*3]Caller: She's talkin about when your ass comes home, between me and you, your ass is leaving. Plain and simple

Deft.: Going where? To Virginia?

Caller: I don't know, probably either Virginia or...Where your pops at?

Deft.: Virginia

Caller: Yeah either Virginia, somewhere.

Deft.: Alright I ain't goin nowhere but alright.

Caller: You are going Shawn. You're not staying out here. She's not playing with you dogs.

Deft.: I ain't going nowhere. I don't f*ck with that n***a. I'm not going with that n***a son.

Caller: Shawn so what you think you going to do? You think she going to spend all her money to get you home so you can be out here doing the same bullsh*t dogs?

Deft.: I'm not even f*ckin with that street sh*t no more son.

Caller: I hope you not bro. I really hope you not son cause you're going to realize son that them same n***as you run with son don't care about you dogs. And you start seeing it now.

Deft.: I feel you son but...

Caller: I'm telling you bro. I went through it son. I went through that same sh*t. Word.

Argument

The People argue that the evidence of defendant's involvement in the September 11, 2010 incident is admissible under Molineux as proof of defendant's identity as the perpetrator of the instant offense, based on the similarity of the two incidents. As a threshold matter, the People maintain that defendant's identity is at issue, as his mother and his mother's boyfriend each testified in the Grand Jury that defendant was at home sleeping at the time of the commission of the alleged crime, and defendant "has indicated a possibility of calling those same witnesses at trial." The People further assert that the prison phone call, in combination with the testimony of eyewitnesses as to descriptions and other particulars of the crime, constitute "clear and convincing evidence" of defendant's identity as a perpetrator of the prior crime. Further, the People maintain that the particulars of the charged and the uncharged crimes constitute clear and convincing proof that the modus operendi is so unique as to make the evidence highly probative of defendant's identity as the perpetrator of the charged crime.

Defendant argues that there are two eyewitnesses to the present crime, and thus the Moilineux evidence is not necessary to prove identity. Further, defendant disputes that his statements during the recorded conversation in fact constitute admissions at all — he maintains that he simply repeats the statements of the caller, and that the statement "so you told he I did it?" is merely a question, which does not admit any criminal liability.[FN1] In short, defendant asserts that the People can not establish by clear and convincing that the defendant committed the uncharged crime. [*4]

Discussion

General Prerequisites for Admitting Evidence Under the Molineux Identity Exception

In general, evidence of an uncharged crime is inadmissible to prove that a defendant committed the charged crime (People v Allweiss, 48 NY2d 40, 46-47, 396 NE2d 735, 738 [1979], citing Molineux, 168 NY at 291). Evidence of an uncharged crime may be admissible on the issue of identity, however. Such evidence is permitted when:

identity is at issue in the charged crime and is not conclusively established by the evidence (People v Beam, 57 NY2d 241, 252, 441 NE2d 1093, 1098 [1982]; Allweiss, 48 NY2d at 47; People v Condon, 26 NY2d 139, 144, 257 NE2d 615, 617 [1970]);

there is "clear and convincing proof that the modus operendi of the crimes is so unique as to make the evidence highly probative on the issue of identity" (People v Robinson, 68 NY2d 541, 548, 503 NE2d 485, 490 [1986]);

there is clear and convincing evidence that the defendant was the perpetrator of the uncharged crime (Robinson, 68 NY2d at 549; People v Neu, 126 AD2d 223, 225, 513 NYS2d 531, 532 [3d Dept 1987]);

the probative value of the evidence outweighs the potential prejudice to the defendant (Allweiss, 48 NY2d at 47).

Each of these requirements is discussed seriatim below.

Establishing that Identity is At Issue in the Charged Crime

In order to admit evidence of a defendant's uncharged crime under the Molineux identity exception, defendant's identity as a perpetrator of the charged crime must be at issue, and his or her identity must not be conclusively established by the evidence (see Condon, supra, 26 NY2d at 144). For example, in People v Beam (supra), the Court of Appeals found that the issue of defendant's identity remained in dispute, even after the victim identified him, since it was put into issue both by cross-examination challenging the validity of the identification, and by defendant's testimony that he was not the perpetrator (57 NY2d at 248, 251). The court noted that even if the victim's testimony was more credible to the jury than that of defendant, "this would not remove the issue of identity from the case" (id. at 251-52).

Similarly, in People v Agina (18 NY3d 600, 602, 965 NE2d 913 [2012]), the Court of Appeals held that defendant's identity was not so conclusively established that evidence of prior crimes was inadmissible, even though defendant admitted to being present at the scene of the crime when it occurred. Apart from the uncharged crime, the victim's testimony was the only other evidence as to defendant's identity as the perpetrator of the charged crime (id. at 603). The court reasoned that, since the jury could doubt the victim's truthfulness, this evidence was not [*5]conclusive on the issue of identity (id.). Further, the court noted that, although the defendant admitted to being at the scene, this evidence failed to conclusively establish his identity for Molineux purposes, since "the identity' that is relevant...[is] the identity of the defendant as the person who did the acts" (id. at 604-05).

In the present case, the court finds that, as in Beam, defendant's identity is at issue. Defendant has asserted an alibi that places him with his family at the time of the charged crime (see 57 NY2d at 251). Further, Beam involved the testimony of a single victim, and here, the People's voluntary disclosure form similarly indicates that only one of the two witnesses to the instant offense was able to positively identify defendant in a photo array and in a lineup (see id. at 248). Moreover, as in Agina, defendant here "actively dispute[s]" his identity as the person who committed the crime (see 18 NY3d at 604). Defendant maintains that he was not present at the scene at the time that the crime occurred.

The court finds that, given the limited evidence supporting the defendant's identity as the perpetrator of the charged crime and defendant's noticed alibi, defendant's identity is not conclusively established for Molineux purposes (see Beam, 57 NY2d at 603, 605).

Evidence of a unique modus operendi in the crimes

There must be "clear and convincing proof that the modus operendi of the crimes is so unique as to make the evidence highly probative" of defendant's identity in the charged crime (Robinson, 68 NY2d at 548). For the moment, the court will consider this factor, noting that there must be sufficient proof that the defendant is the perpetrator of the uncharged crime for the evidence to be admissible (see the discussion, infra).

To be sufficiently similar and probative of defendant's identity for admissibility, the modus operendi used in the two crimes must be "unusual enough to compel the inference that the defendant committed both" (Beam, 57 NY2d at 251; see also Allweiss, 48 NY2d at 47 ["Simply categorizing the defendant as one of many criminal specialists would be of little probative value in determining whether he committed the crimes charged, and the prejudice would be obvious..."]). For example, in People v Neu, the court addressed whether evidence that defendant had robbed a convenience store and murdered the store's clerk was admissible on the issue of defendant's identity as the person who committed a similar murder and robbery at a different convenience store five days later (126 AD2d at 224). The court concluded that there was clear and convincing proof of a unique modus operendi to render the evidence admissible, since "the uniqueness requirement does not require that a perpetrator follow a ritualistic pattern' in committing a crime" (id. at 225, quoting Beam, 57 NY2d at 253).

In this case, the facts and circumstances establish a "distinctive crime pattern" (see id. at 225), which is sufficiently distinctive to satisfy the modus operendi requirement (see also People v Alston, 62 AD3d 806, 808, 880 NYS2d 649, 650 [2d Dept 2009] [concluding that defendant's use of a black bag in four gunpoint robberies demonstrated a unique modus operendi that was probative of his identity as the perpetrator of the crimes]). The distinctive pattern in this case includes the following alleged facts and circumstances:

that defendant allegedly committed the similar crimes with the same accomplice (see People v Whitley, 14 AD3d 403, 405, 788 NYS2d 94, 96 [1st Dept 2005]). Courts have held that the [*6]repeated commission of similar crimes with the same accomplice is a type of distinctive pattern of criminal conduct that is admissible under Molineux to show identity (see People v Arafet, 13 NY3d 460, 466, 892 NYS2d 812, 815 [1st Dept 2009] [concluding that evidence that defendant had previously committed a similar theft of a tractor-trailer with the same accomplice was a distinctive criminal pattern that was admissible to show defendant's identity]; Whitley, 14AD3d at 405 [finding that evidence that defendant committed another robbery with the same partner shortly after the charged crime established a continuing criminal relationship and was admissible as circumstantial evidence of defendant's identity]; People v Palmer, 263 AD2d 361, 362, 693 NYS2d 539, 541 [1st Dept 1999] [noting that evidence of uncharged crime committed with same accomplice established criminal relationship that would be admissible to show identity]).;

the nature of the attack, which involved pistol-whipping the victims in both crimes;

the fact that the perpetrators were not masked in either incident;

the fact that both occurrences involved "push-in" robberies; and,

the proximity in time and place of the two incidents. In this regard, the charged and the uncharged crimes occurred only two days apart and eight blocks apart, and the two incidents occurred during the evening at approximately the same time of the night. Courts have considered these factors when comparing charged and uncharged crimes in a determination of whether an uncharged crime is admissible under Molineux to show defendant's identity in the charged crime (see, e.g., People v Latimer, 24 AD3d 807, 809, 804 NYS2d 493, 495 [3d Dept, 2005] [concluding that crimes were sufficiently distinct since each robbery involved a similar pattern of conduct, each occurred at approximately the same time of day and all occurred within a ten to fifteen mile radius]; Whitley, 14AD3d at 405 [concluding that modus operendi requirement was met where, soon after the charged crime, defendant allegedly committed uncharged crime with the same partner]).

In view of the foregoing factors, the court finds that the modus operendi requirement is satisfied.

Establishing Defendant's Identity as the Perpetrator of the September 11, 2010 Crime

The foregoing discussion hinges upon proof that the defendant has been sufficiently connected with the uncharged crime. Despite a unique modus operandi, the prior crime evidence is inadmissible unless the People have met their burden of establishing defendant's identity as a perpetrator of the September 11, 2010 offense. As noted in People v Robinson (68 NY2d at 549): "To make evidence of a prior uncharged crime relevant, there must be more than a unique method involved, for, as Molineux long ago stated, "the naked similarity of * * * crimes proves nothing" (168 NY, at p 316). The probative value of such evidence is, therefore, dependent upon showing not only that the method used is sufficiently unique to make it highly probable that both crimes were committed by the same individual, but also upon proof that defendant was the [*7]perpetrator of the uncharged crime. To be balanced against probative value as thus defined is the possible prejudice to defendant."

Thus, in order for evidence of uncharged crimes to be probative and admissible under Molineux, "the identity of the defendant as the perpetrator of the prior crime...[must be] established by clear and convincing evidence" (Neu, 126 AD2d at 225).[FN2]

The People maintain that proof of defendant's identity as a perpetrator of the underlying crime is established by the descriptions given by the witnesses, together with the taped prison phone call. Indeed, contrary to defendant's assertion, the incriminating statements made by defendant during the phone call, when placed in the context of the conversation, could be viewed by the trier of fact as constituting admissions and/or adoptive admissions implicating the defendant in the September 11, 2010 offense (see People v Campney, 94 NY2d 307, 310, 726 NE2d 468, 469 [1999] [finding that assent to, or adoption of, a third party's statement can be inferred from circumstantial proof]).

It is well settled in New York that a non-verbal response to an accusation may be admissible against a defendant if the circumstances indicate that the defendant heard the statement, had knowledge of what was said and understood its implications, and was not prevented from replying to it (Campney, 94 NY2d at 312, citing People v Ferrara, 199 NY 414, 430, 92 NE 1054, 1059 [1910]; see also People v Sennon, 170 AD2d 546, 547, 566 NYS2d 327, 327 [2d Dept 1991] [concluding that defendant's lack of response to co-defendant's incriminating statement that defendant "did not have to run away because he was only the lookout" constituted an admission by silence]; People v Benati, 158 AD2d 698, 699, 551 NYS2d 963, 963-94 [2d Dept 1990] [affirming trial court conclusion that defendant's failure to respond to co-defendant's statement, "We have three other people to kill," constituted an admission by silence to involvement in killing that had just occurred]).

Although courts generally exercise caution in admitting declarations by third parties in the presence of a defendant, especially where a defendant's response is ambiguous, there is less risk in admitting such evidence "where a verbalized response is involved, not a failure to speak" (Campney, 94 NY2d at 313). In People v Campney, defendant's brother confessed in writing to the charged burglary, explaining in the statement that he and defendant were jointly responsible (id. at 310, 312). After the brothers conferred privately for ten to fifteen minutes, defendant was observed holding his brother's written statement and told his brother, "You might as well sign it, you already told them all about what happened" (id. at 312). The court concluded that, although neither police officer had heard the brothers' conversation and neither observed defendant reading [*8]the statement, it could be inferred from the circumstances that defendant had been informed of the contents of the confession and that he affirmatively adopted the written statement as his own (id. at 313, 315).

According to the People, when the parties speak of "R-Dot,"they are referring to Rasheen McDowell. The caller's questions, "You still with that n***a um R-Dot?" and "Ya'll in the same crib?" provide support for this assumption, since it is reasonable to infer that "same crib" is a reference to the fact that both defendant and Mr. McDowell are incarcerated at the same location. This inference is further supported by the caller's statement, "we're not gonna be worrying about trying to get him [R-Dot] out [of prison] when ya'll cases are different." It can be reasonably inferred that the caller is referring to the fact that Mr. McDowell's incarceration arose out of the Putnam Avenue incident on September 11, 2010, while defendant's incarceration arose out of the instant offense on September 13, 2010.

Significantly, it is defendant himself, not the caller, who initiates the conversation regarding whether the defendant's mother "know[s] about that other thing," which defendant further describes as "the sh*t that R-Dot did...allegedly did" and as "the sh*t that...went down on Putnam" — references which may be taken as referring to the robbery at 1400 Putnam Avenue on September 11, 2010. Defendant's concern about the consequences of his mother's knowledge of the incident and the fact that he initiated conversation about the topic support the inference that defendant was involved in the Putnam Avenue incident.

The caller then discussed the consequences that would likely arise from defendant's involvement in this incident on Putnam, informing defendant that, "You f*cked up by going into that crib bare faced." Defendant stated, "I feel you... So you told her I did it, aight." Defendant argues that his response was ambiguous, and merely acknowledged defendant's awareness that the caller told defendant's mother that the defendant "did it," rather concurring that in fact defendant committed the crime. However, since defendant could have denied or objected to the caller's statements, it can be inferred from defendant's failure to deny that he assented to the truth of the caller's statements and adopted them as his own (see Campney, 94 NY2d at 313) — especially in view of the fact that defendant brought he subject up, and later expressed concern about his mother's reaction. The response "so you told her I did it" is similar to the adoptive admission made by the defendant in Campney (see id. at 312 ["You might as well sign it, you already told them all about what happened"]; see also, People v Gomez, 21 AD3d 827, 828, 801 NYS2d 294, 295 [1st Dept 2005] [concluding that defendant's failure to contradict coconspirator's statement that defendant was part of the drug-selling team, which was made in defendant's presence, justified an inference of defendant's assent to the truth of the statement]; People v Baldassara, 151 AD2d 1004, 1005, 542 NYS2d 444, 445 [4th Dept 1989] [finding that defendant's silence in response to codefendant's statements was admissible against defendant as a tacit admission of the truth of the statements]).

The prison phone call contains incriminating statements and potential admissions which a trier of fact could accept as evidence of defendant's identity as the perpetrator of the September 11 crime. But these statements alone do not constitute clear and convincing evidence sufficient to warrant admission under Molineux. An admission by defendant, standing alone, has been held to be insufficient evidence that defendant committed the uncharged crime. In People v Wandoloski (128 AD2d 568, 569, 512 N.Y.S.2d 504, 506 [2d Dept 1987]), the Second Department concluded that evidence of defendant's identity as the perpetrator of a similar uncharged robbery, consisting [*9]solely of the defendant's uncorroborated admission, was insufficient because there was no corroborating evidence that the crime had occurred at all, since no victim or eyewitness was produced or identified as to the alleged other crime.

Here, there is indeed evidence that a crime occurred on September 11. But the People have not adequately addressed the fact that the witnesses recanted their testimony concerning defendant's involvement in that crime. The evidence connecting the defendant to the commission of the September 11 crime thus consists of statements containing potential admissions (the interpretation of which must be made by the trier of fact) and descriptions of witnesses who later recanted their identification of the defendant. But, as the People state, the witnesses "recanted" their identifications and "refused" to identify the defendant at a lineup, and thus there is cogent evidence subtracting from the quantum of evidence connecting the defendant to the September 11 crime.

A different result might obtain if the witnesses to the September 11, 2010 robbery merely were unable to identify the perpetrator, but gave descriptions that matched the defendant. But here, the witnesses ostensibly knew the perpetrators, and yet for unknown reasons now "recant" their testimony, and thus affirmatively deny that defendant was responsible.

This court can not, in view of the recantation of the identifications made by the victim and another witness, conclude that there is sufficient corroborating evidence of the defendant's tape-recorded conversation, and therefore the People have not met their burden of proving the defendant's identity of the September 11 crime by clear and convincing evidence (see Robinson, 68 NY2d at 550 [finding that a similarly worded note, similarly worn clothing, and vigorously contested expert testimony that the handwriting on the note was the same as that of defendant, absent eyewitness testimony, was insufficient to connect defendant to the uncharged robbery]). While there is cogent evidence connecting defendant to the uncharged crime, the quantum of evidence does not rise to the heightened burden required under Robinson.

The probative value of the evidence outweighs its potential prejudice

The People have not established by clear and convincing evidence defendant's identity as the perpetrator of the uncharged crime, rendering moot consideration as to whether the "probative value [of the Molineux evidence] will outweigh the potential prejudice to the accused" (see Allweiss, 48 NY2d at 47).

Conclusion

The motion is denied.

This constitutes the order of the Court.

7/23/2012/s/

DateJ.S.C. Footnotes

Footnote 1: Indeed, defendant analogizes the conversation to the so-called "admissions" in the popular movie My Cousin Vinny.

Footnote 2:The "clear and convincing" burden of proof is considered an intermediate standard between the standard of proof "beyond a reasonable doubt" and "preponderance of the evidence" (In re Retention of Henvir Carter, 102 Misc 2d 867, 870, 424 NYS2d 833, 835 [Sup Ct, Suffolk County 1980]). This intermediate "clear and convincing" standard has been interpreted as requiring that a party establish that " the evidence makes it highly probable that what he claims is what actually happened'" (Ausch v St. Paul Fire & Marine Inbs. Co., 125 AD2d 43, 45, 511 NYS2d 919, 922 [2d Dept 1987], quoting PJI2d 1:64 [1986]).