People v Hoyt
Annotate this CaseDecided on May 6, 2019
Criminal Court of the City of New York, Kings County
The People of the State of New York, Plaintiff,
against
Kenneth Hoyt, Defendant.
CR-050642-18KN
Eric Gonzalez
Kings County District Attorney
by ADA Johanna Carmona
350 Jay Street, 14th Floor
Brooklyn, New York 11201
(718) 250-2058
Eugenie Montaigne, Esq.
Brooklyn Defender Services
177 Livingston St., 7th Floor
Brooklyn, NY 11201
(718) 254-0700 ext. 384
Marguerite S. Dougherty, J.
The issue presented to the court in the People's in limine motion is whether the complaining witness may testify about her identification of the defendant though an online news photograph as the individual who exposed himself on the subway on November 12, 2018 and further, if the potential prejudice of that testimony outweighs the probative worth, may defendant cross examine the complaining witness with respect to the attendant de minimis description of the perpetrator she provided to the police. For the reasons that follow, the court holds that the probative value of the online news photograph outweighs the potential prejudice and that the online news photograph of defendant is inextricably linked to the description provided to the police. Therefore, the complaining witness may testify about the online news photograph but may not testify as to headline or content of the accompanying news article or the search terms used to produce results which included the online news photograph and related article.
Procedural History
By motion filed on March 27, 2019, the People moved pursuant to People v Molineux, 168 NY 264 (1901) to admit evidence of defendant's uncharged bad acts on their direct case and pursuant to People v Sandoval, 34 NY2d 371 (1974) to cross-examine defendant about his prior "criminal, vicious or immoral acts," if he should choose to testify. On April 1, 2019 defendant filed his opposition. On April 8, 2019 defendant filed an amendment to his opposition.
On April 11, 2019, the court completed a previously commenced Wade hearing and suppressed the blinded photo array and ordered an independent source hearing. The court also orally issued its Sandoval and Molineux rulings. With respect to the latter, the court first ruled that the People may not present testimony on their direct case of additional alleged incidents of exposure by defendant on the subway. The court next ruled that the People may not elicit testimony regarding the complaining witness's identification of defendant through a Google search which revealed a photograph of defendant and related news article. The online news article detailed defendant's arrest for a series of prior acts of exposure on the subway and his status as a level 3 sex offender. The complaining witness showed the online news photograph to the police when she reported the incident. The complaining witness's description of the perpetrator apart from the online news photograph was scant—essentially, a white male with black hair approximately 30-40 years of age.
By request of the parties, the court heard additional oral argument. The People argued that the decision was unduly limiting their presentation of the case; defense counsel sought clarification of the scope of cross-examination that would be permitted without opening the door to testimony regarding the online news article. The court advised that it anticipated that any questioning about complaining witness's description to police would open the door to testimony regarding the background of the witness identification. The case was then adjourned to April 15, 2019, for an independent source hearing.
On April 15, 2019, the court conducted an independent source hearing. Following the hearing, the court ruled that the complaining witness had an independent source for an in-court identification of defendant. At that point, defense counsel sought to revisit the court's ruling regarding the scope of cross-examination of the complaining witness. Specifically, defense counsel argued that defendant should be permitted to cross-examine the complaining witness as to the description given to the police without introduction of the online news article or photograph. The People renewed their argument to present testimony on their direct case of complaining witness's identification of defendant through an online news photograph complaining witness had located through a Google search. The court directed the parties to submit letter briefs by April 24, 2019.
On April 24, 2019, the parties submitted letter briefs regarding the issue of complaining witness's online identification of defendant. The court notes that this decision is solely limited to that issue and no other prior rulings of the court; all other prior rulings remain unchanged.
Motion to present Molineux Evidence
Evidence of a defendant's prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant's criminal propensity (see People v Lewis, 69 NY2d 321 [1987]). The People may use such evidence to prove motive, intent, lack of mistake or accident, identity, or common scheme or plan (see People v Alvino, 71 NY2d 233, 241-242 [1987]). This list is however "merely illustrative and not exhaustive" (People v Rojas, 97 NY2d 32, 37 [2001]).
Indeed, Molineux evidence is admissible if it is inextricably interwoven with otherwise [*2]admissible evidence and is thus necessary for a full comprehension of the facts (see People v Ely, 68 NY2d 520 [1986]; People v Montanez, 41 NY2d 53 [1976]; People v Ortiz, 134 AD2d 624 [2d Dept 1987]; People v Barlow, 88 AD2d 668 [3d Dept 1982]). Otherwise, the People's case could be prejudiced when their witnesses are forced to give "only generalized accounts of an [incident] without supplying any particulars" (Montanez, 41 NY2d at 58). This exception, however, "does not make evidence admissible simply because it is part of [related evidence] other parts of which are admissible" (People v Crandall, 67 NY2d 111, 116 [1986]) To be admissible, "the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence" (id., citing People v Vails, 43 NY2d 364 [1977]).
Moreover, Molineux evidence is admissible notwithstanding potential prejudice to the defendant (People v Alvino, 71 NY2d 233, 241-243 [2000]; Vails, 43 NY2d at 368; Molineux, 168 NY at 293).In the final analysis, the process is a balancing one in which the probative worth and the potential for prejudice of the proffered evidence must be weighed against each other (People v Ventimiglia, 52 NY2d 350, 359 [1981]; People v Santarelli, 49 NY2d 241, 250 [1980]; see People v Waters, 216 AD2d 340 [2d Dept 1995]; People v Hudy, 73 NY2d 40, 55 [1988] [abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]]).
In the instant case, the complaining witness testified during the independent source hearing that she observed a male expose himself on the N train. Following the encounter, she spoke to a station worker who advised her that a police report would need to be filed. The complaining witness testified that as she was late for work and did not file a police report that day. Further, she testified that on her way to work from the subway station and stopped at a traffic light, she did a Google search using the term "Brooklyn man exposes" or such similar language to see what her next steps were. This search resulted in dozens of photographs of men that the complaining witness reviewed until she saw a photograph of defendant, who she instantly identified as the male who had exposed himself. The related online news article indicated that defendant had previously been accused of similar incidents and was a convicted sex offender.
The following day, the complaining witness went to the police precinct. Each time the complaining witness was asked for a description of the perpetrator, she presented the police with the online news photograph of defendant and identified him as the individual who had exposed himself the previous day.
The court concludes that the complaining witness's limited description of the perpetrator apart from the online news photograph establishes that the two cannot be viewed separately in isolation. Therefore, the court holds that the complaining witness's identification of defendant through the online news photograph is inextricably linked with her description of the perpetrator and will be admissible at trial.
It is anticipated that the complaining witness's testimony will be the only evidence elicited establishing that defendant was the male who exposed himself on the train. As such, this testimony will be critical to the People's case. The court has weighed the potential for prejudice against this critical identification testimony. The court will instruct the jury on the identification evidence to limit the potential of prejudice and will advise the jury, among other things, that they may not hypothesize why defendant's photograph was online or where it originated and that they may not attempt any research online or through other means with respect to any fact, issue, person or law related to this case.
To limit the potential for prejudice, the complaining witness's testimony must be [*3]circumscribed. In this regard, the complaining witness may testify that she:
(1) searched online following the alleged incident;(2) reviewed many photographs and recognized defendant as the perpetrator of the alleged incident;(3) showed the online news photograph to the police and identified the male in the photograph as the perpetrator.The People may also seek to submit a copy of the online news photograph. Unless the defendant opens the door, the complaining witness may not testify as to the search term she used to find the online news photograph, nor may she testify about the accompanying headline or the content of the related article. The People should not seek to introduce the online news article and accompanying headline itself unless the defense explicitly opens the door to such introduction.
The foregoing constitutes the Decision and Order of the court.
Dated: May 6, 2019
Kings County, New York
Hon. Marguerite S. Dougherty
J.C.C.
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