People v Gentle

[*1] People v Gentle 2007 NY Slip Op 51375(U) [16 Misc 3d 1110(A)] Decided on July 10, 2007 County Court, Westchester County Colangelo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2007
County Court, Westchester County

The People of the State of New York,

against

Elwin Gentle, Defendant.



06-6078M



JANET DIFIORE, DISTRICT ATTORNEY

111 Dr. Martin Luther King, Jr. Blvd.

White Plains, NY 10601

BY: JOYCE V. GEORGE, ESQ.

Assistant District Attorney

TAMIKA A. COVERDALE, ESQ.

10 Fiske Place

Suite 228

Mount Vernon, NY 10550

Attorney for Defendant

John P. Colangelo, J.

Defendant Elwin Gentle ("Gentle" or "Defendant") is charged in a Superceding Misdemeanor Information with committing two Misdemeanors: the A Misdemeanor of Aggravated Harassment in the Second Degree (Penal Law  240.30 (1) (b)) and the B Misdemeanor of Stalking in the Fourth Degree (Penal Law  120.45 (3) (the "Accusatory").

Defendant's alleged criminal conduct was allegedly directed against his former girlfriend, Patricia Muckle ("Ms. Muckle" or "Muckle"). Defendant and Ms. Muckle have a daughter in common, who is approximately nine years old.

The alleged facts as charged in the Accusatory are set forth in some detail in the People's Ventimiglia application, and need not be repeated at length here. Suffice it to say that the People intend to prove that Defendant called Ms. Muckle's cellular phone approximately 23 times during a twelve day period in March 2006, made various threats to her which were recorded on the device's voice mail, and did so "in a manner likely to cause [her] annoyance and alarm"(Penal Law  240.30 (1) (b). The People also allege that Defendant, during that same time frame, appeared at Ms. Muckle's place of employment and placed telephone calls to her there for no legitimate purpose, and that his conduct was likely to cause her to fear that her employment was [*2]threatened (Penal Law  120.45 (3)).

Following a pre-trial conference and an audibility hearing with respect to certain of the tape recorded telephone messages, the People made the instant Ventimiglia application seeking to admit in their case in chief at trial certain other prior criminal and bad acts allegedly committed

by Defendant. Defendant opposes the People's application.

Upon the Court's review of the arguments set forth in the papers, the People's application is granted to the extent set forth below.

The Proposed Evidence of Other Criminal And Bad Acts Allegedly Committed by Defendant.

The People seek to introduce in their case in chief evidence of several incidents that took place during the course of Defendant's relationship with Ms. Muckle and her family. Certain alleged incidents involved Ms. Muckle, and others related to conduct directed toward her relatives or child, and date from the period of 1997 to the present. Each such incident involves, at minimum, alleged threatening or harassing behavior of Gentle toward Ms. Muckle or her relatives. The alleged incidents, as described in the People's Ventimiglia application, are summarized as follows:

Incident No. 1: The People seek to introduce, presumably through the testimony of the alleged victim, Ms. Muckle, certain background facts that were the alleged proximate cause of the instant charge and the presumed reason for Defendant's alleged telephone calls and stalking behavior. Such background information includes, according to the People, recent past efforts to arrange for joint supervised visitation with respect to their daughter, and the eventual issuance of an Order of Protection in this case.

Incident # 2: The People contend that on and between June 13th and 14th, 1997, Defendant restrained Ms. Muckle in her apartment and while doing so, raped and sodomized her. The People assert that on July 2nd, 1997, Defendant pled guilty to Unlawful Imprisonment in satisfaction of all charges and was sentenced to a one-year Conditional Discharge and an Order of Protection was issued in favor of Ms. Muckle.

Incidents # 3 - 5: The People contend that in February 1999, that Defendant harassed both Ms. Muckle and her parents by pounding on the door of her parents' home demanding to see Ms. Muckle, and then repeatedly called their home in an effort to reach her. During that same period, Defendant frequently called Ms. Muckle's work and cellular phone. As a result of this conduct, Defendant was charged with violating the 1997 Order of Protection (mentioned above) and when he admitted the violation in May, 1999, a new Order of Protection was issued effective until July 2nd, 2001.

Incident # 6: Yet another series of repeated telephone calls were allegedly made toMs. Muckle in October, 2000 during which Defendant allegedly threatened to makeMs. Muckle's "life miserable", to take her daughter from her and to "kick [Muckle's] ass." As a result of this conduct, Defendant pled guilty to the misdemeanor of Aggravated Harassment in the Second Degree in April, 2001, and was sentenced to 3 years probation with a Final Order of Protection issued in favor of Ms. Muckle.

Incident # 7: The People also maintain that from 2003 to the present, Defendant has attempted to alienate their daughter, Latrice, from Ms. Muckle by telling her, inter alia, that her mother is "evil" and that she and her mother are, eventually, going to hell.

Discussion and Conclusions: [*3]

Both the People and Defendant agree that evidence of prior crimes or bad acts by a defendant other than those charged are inadmissible on the People's case in chief when "such evidence is offered solely to establish criminal disposition or propensity." Prince, Richardson on Evidence at p. 175 (11th ed. 1995). To do otherwise would run the risk of convicting a defendant

for his or her inclination to commit crimes rather than because defendant actually committed the crime charged. However, beginning with the seminal case of People v. Molineux, 168 NY 264 (1901) the Courts have determined that under certain narrow circumstances, the probative value of a defendant's past conduct may be so substantial as to outweigh this risk. Although the list is not limited to these categories, the Courts have generally deemed prior crime or bad act evidence potentially admissible if relevant to establish motive, intent, the absence of mistake or accident, a common plan or scheme, or identity of the alleged perpetrator of the crime charged. See People v. Molineux, 168 NY 264 (1901). In addition, although prior crimes or bad act evidence may be probative on one or more of these issues which must, of course, be or relate closely to an element of the crime charged the trial Court must nonetheless then weigh the probative value of the evidence against its potential prejudicial effect to determine whether it will be admitted. Richardson,  94-502 at pp. 175-176 (11th ed. 1995).

In their Ventimiglia application, the People argue that Defendant's past conduct as described above should be admitted on the People's direct case for each of the following reasons; (1) such evidence is probative of Defendant's "intent" to commit the instant crime crimes, as well as his motive for doing so; (2) such evidence is also probative of "the state of mind of Patricia Muckle"; and (3) such evidence is "inextricably interwoven" with the charged offenses and such evidence provides necessary background understanding for the finder of fact, a further ground sometimes embraced by the Courts. Defendant opposes the People's application, and argues that no prior crime or bad act evidence should be introduced on the People's case in chief, whatever the proffered reason. The Court concludes as follows:

Background Material, Completion of Narrative, State of Mind and Intent.

The People argue that the evidence of Defendant's prior crimes and bad acts as described above should be admitted in order to "complete the narrative" and as "background material" necessary to make the People's case more comprehensible to the jury. Such evidence, if essential for jury comprehension, has been held admissible. See People v. Scervino, 193 AD2d 824 (2d Dept. 1993). In the instant case, the narrative with respect to the acts alleged in the accusatory and Defendant's conduct in 2006 (Incident No. 1 above), will be, presumably, fully expounded upon by the People's witnesses. To the extent that such narrative is limited to the alleged proximate cause of Defendant's telephone calls and visits to Muckle that form the basis of the instant charges as set forth in the Accusatory which the People contend relate to erstwhile efforts to arrange for joint visitation with their daughter such evidence would clearly prove necessary to enable the jury to understand the reason for Defendant's purported instant behavior, and as such would be admissible.

However, other prior criminal or bad acts of Defendant as detailed in Incidents 2 through 7 in the People's submission are not necessarily essential in order to assist in juror comprehension. Nonetheless, the admission of some evidence of Defendant's prior criminal or improper conduct, particularly conduct directed toward Ms. Muckle, may be necessary in order to explain whether Ms. Muckle, or, more precisely, a reasonable person in her situation, had a [*4]reasonable fear of Defendant an element of the crimes charged herein. In addition, some evidence of the prior interaction of Defendant and Ms. Muckle may well be necessary in order to place the conduct charged in the Accusatory in context in order to describe how it may have given rise to a reasonable apprehension on Ms. Muckle's part. Twenty-three telephone messages left over a period of 12 days, and a smaller number of visits to Ms. Muckle's workplace may, in and of themselves, appear ambiguous or confusing unless viewed through the prism of the prior relationship of the parties. On the other hand, the prejudice that might flow from certain past improper conduct of Defendant particularly conduct that concerned Ms. Muckle only tangentially might well outweigh this salutary purpose. Accordingly, a balance must be struck which allows the People to adduce, in a limited fashion, certain past criminal and bad act behavior of Defendant that is necessary to place the instant charged conduct in its proper context, without causing invidious prejudice to Defendant.

In striking this balance, it is clear that evidence of past acts allegedly undertaken by Defendant that were directed, in the first instance, at Ms. Muckle's parents or daughter, although at least marginally relevant to the "background narrative", would be overly prejudicial to Defendant if admitted. Similarly, Defendant's alleged conduct toward Ms. Muckle directly that was never charged, or, at the least, proven to have occurred for example, the alleged rape and sodomy of Ms. Muckle in 1997 is similarly beyond the pale as unduly prejudicial. However, evidence of certain prior harassing conduct of Ms. Muckle by Defendant, for which Defendant was sanctioned by a Court, should be admitted; the potential prejudice toward Defendant in admitting such evidence is, in the Court's view, outweighed by its importance in ensuing the jury's understanding of the charges herein. Otherwise, the jury to the prejudice of the People's case may not be able to properly gauge the nature and quality of Defendant's conduct charged herein, or the nature of Ms. Muckle's reaction to it.

By the same token, such evidence of the prior relationship of Defendant and Muckle is necessary to assist the jury in determining Defendant's purpose and intent in making the calls and visits alleged by the People. The issue of whether, by his conduct as alleged in the Accusatory, Defendant intended to harass, alarm, annoy or threaten Muckle elements of the crimes charged or instead engaged in such conduct for some other lawful and innocuous purpose, is central to this case. Defendant's calls, messages and visits, must reasonably be placed in context of the prior history of Defendant and Muckle rather than in an antiseptic chamber in order for the jury to make an informed decision on these issues. In similar circumstances, the Courts have permitted limited use of prior criminal or bad act evidence in order to enhance juror comprehension of important proffered evidence of instant charges, and when necessary to shed light upon a defendant's intent and purpose. See, e.g.; Prince, Richardson on Evidence at p. 175, 180-185 (11th ed. 1995); People v. Molineux, 168 NY 264 (1901); People v. Crandall, 67 NY2d 111 (1986); People v. Le Grand, 76 AD2d 706 (2d Dept. 1980); People v. Vails, 43 NY2d 364 (1977).

However, as noted above and as the above authorities also make plain, the admission of other crime or bad act evidence, whether by way of background or when relevant to intent or motive, must be done in a limited fashion, thereby reducing the risk of undue prejudice to a defendant. Accordingly, the People may introduce by competent evidence in their case in chief the fact that prior Orders of Protection have been issued against Defendant with Ms. Muckle as [*5]the protected party, when such orders were issued, and that Defendant was held to have violated an Order of Protection in 1999. The People will not be permitted to delve into the details concerning the facts and circumstances underlying the issuance of these Orders of Protection or the violation thereof. Such evidence proves too remote, would doubtless involve parties other than Muckle, and a vivid description of the acts underlying these rulings as proposed by the People in their application is not necessary for the purpose of assisting the jury in understanding background facts, Defendant's intent or Ms. Muckle's state of mind at the time of the alleged instant offenses. With respect to the Defendant's conviction in 2001 for Aggravated Harassment in the Second Degree, however, such concerns do not obtain particularly since Defendant's conduct then closely resembles the behavior alleged in the instant Accusatory. Thus, the People may introduce through competent evidence during their case in chief that Defendant was charged, pled guilty to and was sentenced to probation for the crime of Aggravated Harassment in the Second Degree in 2001, and that telephone calls/unwanted visits to Ms. Muckle formed the basis of this charge and conviction.

The Court will, both at the time such above mentioned evidence is introduced and in its charge to the jury, provide the appropriate limiting instructions, and the Court invites both the People and defense counsel to submit such limiting instructions prior to trial. The issue of whether and to what extent the People will be permitted to adduce other conviction or bad act evidence on cross examination or in their rebuttal case is reserved for the Sandoval hearing which will take place immediately before trial.

The foregoing constitutes the Decision and Order of this Court. The parties are directed to appear on July 11, 2007 at 9:30 a.m. for a pre-trial conference.

DATED: Westchester, New York

July 10, 2007

John P. Colangelo

Acting County Court Judge