People v. Arafet

• Decision Date: 21 August 2008
• Docket Number: No. 101456,101456
• Citation: 2008 NY Slip Op 6658,863 N.Y.S.2d 512,54 A.D.3d 517
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NASIN ARAFET, Appellant.
• Court: New York Supreme Court — Appellate Division

54 A.D.3d 517

863 N.Y.S.2d 512

2008 NY Slip Op 6658

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NASIN ARAFET, Appellant.

No. 101456

Appellate Division of the Supreme Court of New York, Third Department.

August 21, 2008.

Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered November 7, 2005, upon a verdict convicting defendant of the crimes of grand larceny in the first degree and criminal possession of stolen property in the first degree.

Kavanagh, J.

In July 2006, the trailer portion of a large tractor trailer containing Xerox copy machines, printers and accessory equipment worth more than $1 million was stolen from a tandem trailer parking lot in the Town of Rotterdam, Schenectady County, and driven south on the New York State Thruway. Two days after the theft, the trailer was found, absent its cargo, abandoned on a public roadway in northern New Jersey. Defendant was subsequently charged with its theft. At trial, the People presented as evidence a Thruway toll ticket bearing what was identified as defendant's fingerprint and showing that a five-axle vehicle had traveled from exit 25A to exit 15 at the relevant time on the day in question. The People also introduced cellular telephone records showing that one of defendant's cellular telephones traveled from New Jersey to the Albany area and returned on the morning in question, and that the phone was used by someone during the return trip to contact Nelson Quintanilla and a warehouse leased by a company owned by Jose Gotay, both of whom had been previously charged or convicted of stealing trailers and receiving stolen goods. The trailer was found abandoned within 20 miles of Gotay's warehouse and defendant's home. The jury found defendant guilty of grand larceny in the first degree and criminal possession of stolen property in the first degree. Defendant now appeals and we affirm.

The crucial question upon which the jury was urged to focus its attention was whether the People proved beyond a reasonable doubt that defendant was the individual who stole the trailer, drove it to New Jersey, unloaded its cargo and abandoned it. The proof submitted on this issue was entirely circumstantial and the People's need for corroboration was manifest. In that regard, the People sought to present evidence of defendant's involvement in prior thefts of trailers containing large quantities of bulk merchandise. County Court, in a measured ruling, allowed evidence of some, but not all, of these prior bad acts as described by the People in their proffer, and the court did so only after it conducted a thorough review of all of the attendant circumstances (see People v Alvino, 71 NY2d 233, 247 [1987]). The court also gave the jury limiting instructions when this evidence was received at trial that clearly and correctly detailed how it could be used in its deliberations (see People v Till, 87 NY2d 835, 837 [1995]; People v Doyle, 48 AD3d 961, 964 [2008]).

The evidence admitted specifically described the circumstances surrounding a total of four other hijackings, two of which did not involve defendant and focused entirely on the activities of defendant's two alleged accomplices in this hijacking, Quintanilla and Gotay. By this proof, the People sought to establish that both Gotay and Quintanilla were intimately involved in the criminal enterprise of hijacking trailers and the theft of their cargo. It was not alleged that defendant was involved in any of these crimes, therefore there is no issue as to a Molineux or Ventimiglia violation. "[E]vidence is relevant if it has any tendency in reason to prove any material fact" (People v Mateo, 2 NY3d 383, 424 [2004] [internal quotation marks and citations omitted]), but to be admissible its probative value must not be "substantially outweighed by the potential for prejudice" (id. at 425). This evidence was properly admitted to prove a material fact—it put into context the significance of telephone records which suggested that the hijacker had been in contact with both men prior to, during and immediately after the trailer in question had been hijacked and its cargo stolen (see People v Montanez, 41 NY2d 53, 58 [1976]; People v Mitchell, 40 AD2d 117, 119 [1972]; see also People v Resek, 3 NY3d 385, 389 [2004]).

With respect to County Court's ruling allowing the People to use evidence of prior uncharged hijackings of trailers that involved defendant, as a general rule, evidence of a defendant's prior bad acts and criminal convictions cannot be introduced as part of the People's case-in-chief to show criminal propensity (see People v Blair, 90 NY2d 1003, 1004-1005 [1997]; People v Alvino, 71 NY2d at 241-242; People v Ventimiglia, 52 NY2d 350, 359 [1981]). Such evidence may be permitted, however, if it falls within one of the general rule's exceptions, such as where it is used to prove an identical or unique modus operandi or the existence of a common scheme or plan (see People v Rojas, 97 NY2d 32, 37 [2001]; People v Alvino, 71 NY2d at 242; see generally People v Molineux, 168 NY 264, 295 [1901]). Modus operandi evidence may be admissible to establish identity if its probative value outweighs the risk of prejudice to defendant (see People v Resek, 3 NY3d at 389) and where, as here, the identity of the perpetrator has not been conclusively established and the case relies heavily on circumstantial evidence (see People v Toland, 284 AD2d 798, 803-804 [2001], lv denied 96 NY2d 942 [2001]). The evidence of the uncharged crime, however, must demonstrate a unique and distinctive modus operandi so as to make the evidence highly probative of identity (see People v Robinson, 68 NY2d 541, 547-548 [1986]; People v Beam, 57 NY2d 241, 251 [1982]; People v Condon, 26 NY2d 139, 144 [1970]). "The uniqueness requirement does not mandate a ritualistic pattern, but the crime pattern as a whole must be distinctive" (People v Latimer, 24 AD3d 807, 809 [2005], lv denied 6 NY3d 849 [2006] [citation omitted]; see People v Toland, 284 AD2d at 803]).

While the hijacking of a large tractor trailer may be considered by some a "common occurrence," the fact is that the theft of such a large vehicle and the disposition of its cargo is a complicated criminal undertaking requiring numerous accomplices, extensive planning and significant coordination. Defendant's prior participation in such extraordinary criminal behavior under the circumstances presented is relevant to determine whether he was in fact the perpetrator of the hijacking at issue (see People v Allweiss, 48 NY2d 40, 48-49 [1979]).

In one of the two uncharged crimes in which it is claimed that defendant was a participant, defendant is alleged to have admitted being recruited by Quintanilla to hijack a trailer and deliver its cargo to a predetermined location in northern New Jersey. After defendant agreed to participate, Quintanilla, in July 1996, made arrangements for defendant and two others to hijack two trailers from a CSX truck depot located in North Bergen, New Jersey. Entrance to the facility was gained through the cooperation of a CSX employee who identified the trailers to be taken and provided access to those vehicles so that defendant and his accomplices could hijack them. Two trailers containing a large quantity of toys and televisions were taken by defendant and his accomplices from the depot to a location in northern New Jersey where Quintanilla had made arrangements to unload the cargo and secrete it until it could be sold. After the trailers were unloaded, they were abandoned on the roadside of a public highway in northern New Jersey.

The crime that defendant is charged with here has the same distinctive and unique modus operandi. The trailer containing the Xerox copy machines and other equipment was stolen from the tandem trailer parking lot in the Town of Rotterdam, Schenectady County, and driven south on the Thruway. Throughout this trip, the hijacker was allegedly in telephone contact with both Quintanilla and Gotay. Two days after the theft, the trailer was found, absent its cargo, abandoned on a public roadway in northern New Jersey. From these facts, it is fair to assume that more than one person was involved in the plan to hijack this trailer, the perpetrators of this hijacking had inside information that led them to the trailer in question, and the hijacker had access to resources that allowed for the efficient and covert disposition of a large quantity of bulk merchandise soon after it had been stolen. In short, the modus operandi employed by the perpetrators of this hijacking is strikingly similar to that used by Quintanilla and defendant in the uncharged hijacking.

Equally important, a signature circumstance common to both the charged and this uncharged hijacking was the intimate involvement of Quintanilla. Simply put, since the hijacker's identification was the only issue to be decided at trial, and the People presented credible evidence to the effect that the hijacker had been in contact with Quintanilla while this crime was being committed, defendant's prior involvement with Quintanilla in such a criminal undertaking was obviously relevant in establishing that he was indeed the person who stole the trailer and drove it to northern New Jersey. The probative value of such evidence, given the level of Quintanilla's alleged involvement in both the charged and uncharged hijacking, is self-evident and overwhelms any prejudice that might otherwise result from its admission (see People v Athanasatos, 40 AD3d 1263, 1265 [2007], lv denied 9 NY3d 872 [2007]). Clearly, such evidence, given all of the attendant circumstances, was relevant in establishing defendant's identity as the hijacker and was properly admitted at trial (see People v Mateo, 93 NY2d 327, 332 [1999]; see also People v Toland, 284 AD2d at 803-804; People v Keller, 215 AD2d 502, 502-503 [1995], lv denied 87 NY2d 904 [1995]).

A closer question exists as to the admission of...