People v. Bent
| Decision Date | 26 April 1990 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Donald H. BENT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Sol Greenberg, Albany County Dist. Atty. (David M. Freedman, of Counsel), Albany, for respondent.
Michael J. Hutter, Albany, for appellant.
Before MAHONEY, P.J., and CASEY, WEISS, LEVINE and HARVEY, JJ.
Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered June 3, 1988, upon a verdict convicting defendant of the crime of murder in the second degree.
After a jury trial, defendant was convicted of murdering his wife, whose body was found in the trunk of her abandoned car several days after defendant had reported her missing. Defendant's first contention on appeal is that County Court erred in permitting the People to present evidence on their direct case of defendant's prior conviction of the crime of embezzlement. The evidence was offered by the People in an effort to establish a motive for the murder (see, People v. Molineux, 168 N.Y. 264, 61 N.E. 286). As a part of the plea bargain that resulted in defendant's earlier embezzlement conviction, defendant was required to make restitution of approximately $30,000, payable in monthly installments in excess of $570. This obligation, together with defendant's legal fees and other obligations, coupled with defendant's unemployment, created a financial strain which led defendant's wife to contemplate a divorce. According to the People's theory, defendant was fearful that a divorce would leave him virtually penniless and unable to meet his obligation to pay restitution. He was particularly upset over the thought of receiving nothing for the work and money he had expended on the house owned by his wife. The People also presented proof that defendant believed he was the sole beneficiary under his wife's will.
Defendant concedes on appeal that evidence of the debt created as a result of the embezzlement conviction was relevant on the issue of motive, but he contends that the embezzlement conviction itself was not relevant. We disagree. That the obligation arose out of a criminal proceeding and was not an ordinary debt with only civil penalties for nonpayment was, in our view, relevant to defendant's motive and intent. Applying the balancing process in which the degree of probativeness and the potential for prejudice are weighed against each other (see, People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59), we conclude that County Court did not err in admitting evidence of defendant's earlier conviction of embezzlement. As previously noted the evidence is relevant, and we see little likelihood in the jury concluding that one who has committed embezzlement has a propensity to commit violent crimes, including the murder of his wife. We also note that County Court gave appropriate limiting instructions in its charge to the jury.
We also reject defendant's contention that County Court erred in denying his motion for a hearing to explore whether two of the People's witnesses, who were fellow inmates with defendant prior to trial, were acting as agents of the police when defendant made incriminating statements to them. Defendant concedes he was required to show that the authorities were more than passive recipients of information (see, People v. Farley, 120 A.D.2d 761, 501 N.Y.S.2d 497), but he claims that a hearing was required since it was "unusual" for convicted inmates, such as the two witnesses, to be placed in the same tier as pretrial detainees. Noticeably absent, however, is any proof that the government was actively involved in, or even encouraged, the witnesses' decision to volunteer the information (see, People v. Cardona, 41 N.Y.2d 333, 392 N.Y.S.2d 606, 360 N.E.2d 1306). Both witnesses testified that there were no deals. Since defendant's agency claim is based only on...
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