People v. Condon
Decision Date | 18 February 1970 |
Citation | 309 N.Y.S.2d 152,26 N.Y.2d 139 |
Parties | , 257 N.E.2d 615 The PEOPLE of the State of New York, Appellant, v. Lawrence James CONDON, Respondent. |
Court | New York Court of Appeals Court of Appeals |
William Cahn, Dist. Atty. (Henry P. DeVine, Mineola, of counsel), for appellant.
Matthew Muraskin, James J. McDonough and Harry Peltz, Jr., Mineola, for respondent.
The indictment charged defendant with the armed robbery of Hiram Green's Liquor Store in Hicksville, Long Island (Nassau County) on November 27, 1965.
On the trial, the totality of the direct evidence against the defendant consisted of eyewitness testimony of a clerk who was on duty in the liquor store at the time of the robbery. In addition to this direct evidence, there was extensive testimony tending to establish that defendant had committed a similar robbery at a liquor store in Suffolk County approximately one week after the robbery charged in the indictment. This testimony established all of the details of this other robbery as well as of defendant's arrest soon thereafter. In this respect there was testimony to the effect that within minutes of the Suffolk County robbery (the one not charged in this indictment) the police found the car used therein, abandoned several miles from the scene and soon thereafter defendant was arrested relatively nearby. In that car the police found a pistol which was established by ballistic tests to be the very one used in both robberies. Moreover, there was testimony tending to establish that the car had been in the possession of the defendant prior to its being abandoned, i.e., that the license plates on the car had been issued to the defendant and that defendant's palm print was found on the car.
On appeal the Appellate Division, Second Department, reversed defendant's conviction. While we agree with the Appellate Division, that there should be a reversal of the conviction and thus a new trial, the rationale underlying the Appellate Division determination was erroneous. That court, in its opinion, stated: (Emphasis added.)
Although it may be the rule in other jurisdictions (see 29 Am.Jur.2d, Evidence, § 322, p. 373) that the identity exception enunciated in People v. Molineux, 168 N.Y. 264, 61 N.E. 286, is not available where the identity of the defendant is established by other evidence (People v. Baskett, 237 Cal.App.2d 712, 47 Cal.Rptr. 274; Wakaksan v. United States, 8 Cir., 367 F.2d 639) we have never so held. We are of the opinion that unless the defendant's identity is Conclusively established, the identity exception set forth in Molineux should apply to enable the prosecution to adequately prove the defendant's identity. In the instant case, since the single eyewitness was extensively impeached, defendant's identity was not conclusively established. * It is, therefore, concluded that so long as the evidence adduced as to the Suffolk County crime was relevant on the issue of identity, the People should not have been precluded from introducing evidence of that crime merely because there was some other evidence in the case tending to establish the identity of the defendant. Nevertheless, the Appellate Division's reversal of the conviction should be affirmed because some of the evidence introduced by the People, namely the details of the Suffolk County crime, was not relevant on the issue of identity and, therefore, merely tended to establish defendant's criminal disposition.
While it is true, as a general rule, that evidence material and relevant to prove the crime charged will not be rendered inadmissible simply because it also tends to establish that the defendant is guilty of a crime other than the one charged (People v. Place, 157 N.Y. 584, 52 N.E. 576; People v. Molineux, Supra; People v. McLaughlin, 150 N.Y. 365, 44 N.E. 1017), it is equally well established that the prosecution may not prove against a defendant, a crime not charged in the indictment merely to establish that the defendant has a propensity to commit crimes so as to raise a presumption that he would be more apt to have committed the crime charged (People v. Goldstein, 295 N.Y. 61, 65 N.E.2d 169; People v. Molineux, Supra). The probative value of such evidence is generally outweighed by the danger that its admission would create substantial danger of undue prejudice to the defendant and it will, therefore, be excluded (People v. Harris, 209 N.Y. 70, 102 N.E. 546).
In People v. Molineux, Supra, 168 N.Y. at p. 293, 61 N.E. at 294) this court stated that: (Emphasis added.)
The court, however, added the following caveat to the identity exception: (Supra at p. 313, 61 N.E. at 302).
It would appear, therefore, that generally, evidence of an uncharged crime allegedly committed by the defendant would not be admissible if the only connection between the two crimes is a similar Modus operandi. There must be some additional factor relating the crimes other than the similarity thereof, in order to permit evidence of the uncharged crime to aid in the proof of the one charged (see People v. Hill, 198 N.Y. 64, 91 N.E. 272; People v. Thau, 219 N.Y. 39, 113 N.E. 556; People v. Sharp, 107 N.Y. 427, 471, 14 N.E. 319). This is not to say, however, that in a proper case Modus operandi would not be a sufficient connection, for we can envision crimes so unique that the mere proof that the defendant had committed a similar act would be highly probative of the fact that he committed the one charged; (e.g., the identifiable characteristics of the crimes committed by the notorious 'Jack the Ripper'). It is our opinion, however, that in the instant case, the crime charged is not so unique as to allow admission of evidence of the second crime on the theory of the similarity of the Modus operandi.
The People have urged, however, that proof of the other robbery was nevertheless admissible since defendant's use of the same gun in the commission of both robberies tended to establish the issue of his...
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