People v. Degerolamo

• Decision Date: 17 April 2014
• Citation: 2014 N.Y. Slip Op. 02698,983 N.Y.S.2d 562,118 A.D.3d 23
• Parties: The PEOPLE of the State of New York, Respondent, v. Gerald DeGEROLAMO, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 23

983 N.Y.S.2d 562

2014 N.Y. Slip Op. 02698

The PEOPLE of the State of New York, Respondent,

v.Gerald DeGEROLAMO, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

April 17, 2014.

Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein and Eleanor J. Ostrow of counsel), for respondent.

DAVID FRIEDMAN, J.P., ROLANDO T. ACOSTA, RICHARD T. ANDRIAS, LELAND G. DEGRASSE, HELEN E. FREEDMAN, JJ.

ACOSTA, J.

At issue in this case is the propriety of the trial court's decision to admit evidence of a different crime, under People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901), where evidence of intent was not ambiguous (assuming the jury believed the complainant), and there was insufficient indicia of similarity to fall within the “common scheme or plan” exception. Defendant was charged with robbery in the second degree and related offenses in connection with a December 26, 2009 incident in which he allegedly sprayed complainant David Cushman in the face with mace, and stole a ring he had previously negotiated to purchase from Cushman. On June 14, 2010, defendant was charged with grand larceny in the second degree and related offenses in connection with an incident in which he allegedly stole rings worth more than $90,000 from complainant Mary Nguyen by tricking her into placing the rings in a pouch and then replacing them with others before leaving the pouch with her. Over defendant's objection, the court allowed the People to introduce evidence of defendant's theft of Nguyen's rings as Molineux evidence at defendant's trial for the Cushman robbery. We find that the court erred in allowing Nguyen's testimony to be admitted and that the error requires reversal and a new trial.

In 2007, David Cushman spent $30,000 on an engagement ring. When the engagement was called off, Cushman attempted to re-sell the ring to a jewelry store. Unsatisfied with the price he was offered, Cushman advertised the ring for sale on Craigslist in June 2009. Defendant responded to the ad, and after speaking on the phone with Cushman several times over the next two weeks, defendant asked Cushman to show the ring to him and his girlfriend. Cushman met defendant in a parking lot adjacent to the docks where defendant said his girlfriend kept her boat. Defendant and Cushman waited for defendant's girlfriend for about 15 minutes, but she never showed up, and they left. Approximately two weeks later, defendant asked Cushman to meet him at Maimonides Hospital, where, defendant claimed, he was visiting his sick mother. Cushman arrived at around 7:30 p.m., but when defendant did not show up, Cushman left him a voicemail telling him to “leave [him] alone.”

In August 2009, defendant sent a text message to Cushman that he would have the money to buy the ring that week, but subsequently sent a message that he did not have the money. Finally, in December 2009, defendant contacted Cushman again about buying his ring, and promised to pay a non-refundable $3,000 deposit. Defendant asked Cushman to meet his “daughter” at a jewelry store to have the ring appraised. Cushman followed defendant into the vestibule of an apartment building. According to Cushman, while they waited for the elevator, defendant asked him if he had the ring. When Cushman removed the ring from a box, defendant maced Cushman in the face. As Cushman struggled to breathe, defendant pushed him against the wall, ripped the ring from his hand, and ran out the door. Cushman managed to grab onto defendant's jacket outside and was able to subdue him until the police arrived.

According to defendant, however, it was Cushman who sprayed a substance into defendant's eyes and then hit the top of his head with a bat or some other blunt object. Police were called to the scene, where they separated the two men and arrested defendant.

Pursuant to the court's Molineux ruling, Mary Nguyen testified that in mid-September 2009, she met with a man, who she said was defendant and who called himself “Joey,” to sell him her wedding rings. He told her that he was a jewelry dealer and that his mother was in the hospital. The two met around lunchtime in Nguyen's apartment. About two weeks later, they met again at lunchtime in a restaurant. Defendant told Nguyen that his buyer for the rings would meet them at the restaurant, but nobody showed up.

About a week and a half later, defendant an Nguyen met again at the same restaurant. Nguyen's boyfriend followed them to the restaurant and sat alone at the bar. A woman invited by defendant also attended the meeting, which lasted about half an hour. Defendant told Nguyen that he wanted to introduce her to his buyer as his girlfriend, and he asked to carry her rings in a zippered black pouch “to make it look really legitimate.” Nguyen gave defendant her rings, which he put in his pouch. In the restaurant, they met with another woman, and defendant showed the woman a diamond ring that was not Nguyen's. A few minutes later, defendant excused himself to go to the bathroom, leaving his pouch on the table. When defendant sent her a text message saying that his stomach felt “awful,” Nguyen grabbed the pouch, which proved to contain pieces of costume jewelry, but not her rings. Nguyen's boyfriend checked the bathroom, but it was empty. Nguyen called the police, but she never recovered her rings.

In its final charge, the court instructed the jury that the People contended that the evidence that defendant had stolen rings from Nguyen was “so similar” to the charged incident that it constituted a “common plan or scheme,” and that the evidence was “offered on the issue of defendant's intent to steal in the instant case.”

It is well established that “[e]vidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his past” ( People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ). Exceptions to the rule were established in People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901];see People v. Resek, 3 N.Y.3d 385, 390, 787 N.Y.S.2d 683, 821 N.E.2d 108 [2004] [“under our Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions”]. Molineux evidence must tend to establish a legally relevant and material issue, and its probative value must outweigh its potential prejudice to the defendant ( Alvino, 71 N.Y.2d at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808). At issue in this case are two of the exceptions addressed in Molineux: evidence offered on the issue of intent and evidence of “common plan or scheme” (160 N.Y. at 305, 54 N.E. 724).

Where intent is at issue but cannot be readily inferred from the commission of the act itself, evidence of prior criminal acts may be used to establish it ( Alvino, 71 N.Y.2d at 242, 525 N.Y.S.2d 7, 519 N.E.2d 808). Where, however, proof of the act demonstrates that the defendant acted with the requisite state of mind, Molineux evidence should not be admitted ( id.). Here, proof of defendant's actions is sufficient to demonstrate that he acted with the requisite intent. Spraying someone in the face with mace, grabbing the person's ring and running can only indicate an intent to steal the ring. If the jury believed Cushman's testimony, then it would have to infer that defendant intended to steal the ring from him.

Citing to People v. Ingram, the dissent correctly notes that Molineux evidence may be used “[w]hen defendant's criminal intent cannot be inferred from the commissionof the act or when defendant's intent or mental state in doing the act is placed in issue (71 N.Y.2d at 479, 527 N.Y.S.2d 363, 522 N.E.2d 439 [emphasis added] ). But as noted above, if the jury believed complainant's version, defendant's intent is obvious from the commission of the act. There is nothing in the way defendant did the act (assuming complainant's version) that would place the intent to steal at issue. In this regard, I disagree with the dissent's assertion that “the chain of events leading up to the robbery created ambiguities as to defendant's intent.” On the contrary, the People's evidence left no ambiguity as to defendant's intent.¹ As the dissent notes, “There is ample case law to support the proposition that uncharged crimes evidence may be used to support testimony that otherwise might be unbelievable or suspect” (quoting People v. Steinberg, 170 A.D.2d 50, 73–74, 573 N.Y.S.2d 965 [1991],affd.79 N.Y.2d 673, 584 N.Y.S.2d 770, 595 N.E.2d 845 [1992] ). However, that is not the case here.

Nor was Nguyen's testimony admissible under the common plan or scheme exception, which requires that “there exist[ ] a single inseparable plan encompassing both the charged and the uncharged crimes” ( People v. Fiore, 34 N.Y.2d 81, 85, 356 N.Y.S.2d 38, 312 N.E.2d 174 [1974] ). “There must be ‘such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations' ” ( id., citation omitted). Indeed, the Court of Appeals noted that “courts have been particularly cautious in permitting proof of uncharged criminal acts to establish a common scheme or plan” ( id.). Evidence that is merely indicative of a modus operandi is not sufficient. “[A] modus operandi alone is not a common scheme; it is only a repetitive pattern” ( id. at 87, 356 N.Y.S.2d 38, 312 N.E.2d 174). What is generally required is evidence of “uncharged crimes committed in order to effect the primary crime for which the accused has been indicted” ( id. at 85, 356 N.Y.S.2d 38, 312 N.E.2d 174).

In this case, the similarities between the presently charged robbery of Cushman and the robbery testified to by Nguyen—that...