People v. Denson

• Decision Date: 27 October 2015
• Docket Number: No. 130.,130.
• Citation: 42 N.E.3d 676,2015 N.Y. Slip Op. 07779,21 N.Y.S.3d 179,26 N.Y.3d 179
• Parties: The PEOPLE of the State of New York, Respondent, v. Raymond DENSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 179
42 N.E.3d 676
21 N.Y.S.3d 179
2015 N.Y. Slip Op. 07779

The PEOPLE of the State of New York, Respondent
v.
Raymond DENSON, Appellant.

No. 130.

Court of Appeals of New York.

Oct. 27, 2015.

Richard M. Greenberg, Office of the Appellate Defender, New York City (Kerry S. Jamieson of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Christopher P. Marinelli and Martin J. Foncello of counsel), for respondent.

OPINION OF THE COURT

FAHEY, J.

42 N.E.3d 679

Defendant was convicted after a nonjury trial of, inter alia, attempted kidnapping in the second degree. On this appeal, we are asked to decide, among other issues, whether the trial court erred in admitting evidence of defendant's prior conviction of a sex crime committed against a child, as relevant to his intent in the current offense. Defendant also challenges the legal sufficiency of the People's evidence. We hold that the trial court did not err in admitting evidence of defendant's prior conviction. We further hold that the evidence is legally sufficient to sustain the

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conviction of attempted kidnapping in the second degree.

I.

The victim of the offense was a 10–year–old girl who lived with her mother in an apartment located above the hardware store where defendant worked. The evidence at trial established that defendant often exchanged greetings with the victim and her mother as they entered or exited the building. When the victim began junior high school in 1998, her mother allowed her to walk alone to and from the school, which was close to their apartment building. During this time, defendant frequently approached the victim as she walked home from school, and he repeatedly offered to take her out for ice cream, or to take her ice skating or to the movies. The victim felt “bothered” by defendant's conduct and rejected his requests. The victim estimated that defendant made offers to take her out between 30 and 40 times.

On August 29, 1998, when the victim was standing outside the hardware store while her mother was trying to hail a taxi, defendant approached them. The victim and her mother testified that defendant said that the victim was upset with him because he had not taken her ice skating or to the movies. Defendant then stated that he wanted to take the victim to see a film.

On September 6, 1998, the victim heard a knock at the door to her apartment. Her mother was in the shower. She saw no one at the door when she looked through the peephole, but when she opened the door slightly, defendant was standing there. The victim testified that defendant was “dressed up” in a red, “[c]rushed velvet or felt” outfit with red shoes, a “beret hat and a black shirt.” He asked the victim whether she was ready

to go to the movies. The victim said that she was not. Defendant asked her if she was busy that week, and the victim said that she was. She then closed the door. This incident took place on a Sunday, when the hardware store was closed. Furthermore, a buzzer access system prevented unauthorized entry to the apartment building, and defendant had not buzzed the victim's apartment to gain entry.

On September 11, 1998, the victim came home from school alone as usual, entered the apartment building, and began walking up the stairs. She then saw defendant exiting a door to the basement, which the hardware store used for storage. The victim said “hello” to defendant. Defendant, who was standing two to three feet away from the victim, said, “Here's the keys to my apartment,” and he began to take the chain holding his keys from around his neck. The victim refused to take the keys, and defendant asked her three times if she was sure. When she repeated her refusals, defendant told her to meet him downstairs later that day if she changed her mind and promised he would get her some ice cream. The victim ran upstairs to her mother's apartment, feeling frightened. Later that day, she told her mother what had happened, and her mother contacted the police. A grand jury subsequently indicted defendant on charges of attempted kidnapping in the second degree (Penal Law §§ 110.00, 135.20 ) and endangering the welfare of a child (§ 260.10[1] ).

Before trial, the People sought to introduce evidence of defendant's 1978 sodomy conviction (see former Penal Law § 130.50), arising from his sexual abuse of his stepdaughter, as evidence of his intent with respect to the charge of attempted kidnapping in the second degree. Defendant opposed the People's application. The court held a lengthy Ventimiglia hearing (see People v. Ventimiglia, 52 N.Y.2d 350, 361–362, 438 N.Y.S.2d 261, 420 N.E.2d 59 [1981] ), during which it heard

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the testimony of an expert who testified on behalf of the People, as well as an expert who testified on behalf of defendant. After the hearing, the trial court held that the evidence of defendant's prior conviction was admissible to prove defendant's intent.

During the ensuing nonjury trial, the victim and her mother testified with respect to the foregoing facts leading to defendant's arrest. Defendant's estranged wife and her niece testified regarding defendant's sexual abuse of his stepdaughter. Defendant's estranged wife testified that defendant frequently took his stepdaughter on outings in which he would dress up

in a “dress suit” with a fur “round rim hat,” and he would require his stepdaughter to dress up as well. The same expert witnesses who testified at the Ventimiglia hearing also provided testimony at trial.

The court found defendant guilty as charged. A divided Appellate Division affirmed (People v. Denson, 114 A.D.3d 543, 980 N.Y.S.2d 434 [1st Dept.2014] ), and one of the dissenting Justices granted defendant leave to appeal to this Court. We now affirm.

II.

Defendant contends that the trial court erred in allowing the People to introduce evidence of his 1978 sodomy conviction as evidence of his intent in the present offense. We disagree.

“[T]he familiar Molineux rule states that evidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged” (People v. Cass, 18 N.Y.3d 553, 559, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012] ). Where, however, “the proffered Molineux evidence is relevant to some material fact in the case, other than the defendant's propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes” (id. at 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 ). Although it is not an exhaustive list, evidence of a defendant's prior bad acts may be admitted to prove the crime charged when the evidence tends to establish:

“(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial” (id., citing People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 [1901] ).

Here, the People asserted that defendant's prior conviction was relevant to establish his intent with respect to the charge of attempted kidnapping in the second degree. In assessing whether evidence of a defendant's prior criminal acts should be admitted at trial, a trial court is required to engage in a two-step analysis. First, the trial court must determine whether the People have “identif[ied] some material issue, other than the defendant's criminal propensity, to which the evidence is directly relevant” (Cass, 18 N.Y.3d at 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 ). If the People have

met that burden, the trial court must then “weigh the evidence's probative value against its potential for undue prejudice to the defendant” (id.; see People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ). “If the evidence has substantial probative value and is directly relevant to the purpose—other than to show criminal propensity—for which it is offered, the probative value of the evidence outweighs the danger of prejudice and the court may admit the

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evidence” (Cass, 18 N.Y.3d at 560, 942 N.Y.S.2d 416, 965 N.E.2d 918 ).

Inasmuch as defendant was charged with attempted kidnapping in the second degree, the People were required to prove that he intended to “abduct” the victim, i.e., that he intended to prevent the victim's liberation “by either (a) secreting or holding [her] in a place where [she was] not likely to be found, or (b) using or threatening to use deadly physical force” (Penal Law §§ 135.00[2] ; 135.20). The People proceeded on the theory that defendant intended to prevent the victim's liberation by secreting or holding her in a place where she was not likely to be found (see § 135.00[2][a] ). Thus, the only portion of Penal Law § 135.00(2) that applies here is paragraph (a).

During the Ventimiglia hearing, the People's expert witness testified that defendant's behavior...