People v. Gamble

• Court: New York Supreme Court — Appellate Division
• Citation: People v. Gamble, 215 N.Y.S.3d 852, 229 A.D.3d 1290 (N.Y. App. Div. 2024)
• Decision Date: 26 July 2024
• Parties: The PEOPLE of the State of New York, Respondent, v. Charles GAMBLE, Defendant-Appellant (Appeal No. 1.)
• topic: Criminal procedure,Civil Procedure

215 N.Y.S.3d 852

229 A.D.3d 1290

The PEOPLE of the State of New York, Respondent,

v.Charles GAMBLE, Defendant-Appellant (Appeal No. 1.)

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

Entered: July 26, 2024

Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered November 8, 2021. The judgment convicted defendant upon a jury verdict of criminal possession of a weapon in the second degree (two counts) and assault in the second degree.

STEVEN A. FELDMAN, MANHASSET, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMY N. WALENDZIAK OF COUNSEL), FOR RESPONDENT.

PRESENT: LINDLEY, J.P., MONTOUR, OGDEN, KEANE, AND HANNAH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is affirmed.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [2]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). In appeal No. 2, defendant appeals from a judgment convicting him upon a jury verdict of tampering with a witness in the third degree (§ 215.11 [1]). Appeal Nos. 1 and 2 arise from separate indictments that were consolidated and tried together.

[1–5] In both appeals, defendant contends that Supreme Court erred in permitting the People to elicit testimony from the victim regarding a prior uncharged bad act in which defendant allegedly pulled out a knife during a confrontation with the victim that occurred approximately one month prior to the incident underlying appeal No. 1. To the extent that defendant contends that the court erred in failing to issue limiting instructions with respect to that Molineux evidence, defendant’s contention is not preserved for our review (see CPL 470.05 [2]; People v. Hildreth, 199 A.D.3d 1366, 1368, 158 N.Y.S.3d 468 [4th Dept. 2021], lv denied 37 N.Y.3d 1161, 160 N.Y.S.3d 698, 181 N.E.3d 1126 [2022]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We agree with defendant, however, that the testimony was improperly admitted as evidence of his motive to commit the instant offense. "[A]llegations of prior bad acts may not be admitted against [a defendant] for the sole purpose of establishing their propensity for criminality" (People v. Weinstein, — N.Y.3d —, —, — N.Y.S.3d —, — N.E.3d —, 2024 N.Y. Slip Op. 02222, *1 [2024], citing People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901]). "Molineux recognized exceptions by which evidence of other crimes could be used to prove the charged crime when such evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan …; [or] (5) the identity of the person charged with the commission of the crime on trial" (Weinstein, — N.Y.3d at —, — N.Y.S.3d —, — N.E.3d —, 2024 N.Y. Slip Op. 02222, *5 [internal quotation marks omitted]). "In order to be admissible, Molineux evidence must be logically connected to some specific material issue in the case and be directly relevant to it" (id. [internal quotation marks omitted]; see People v. Denson, 26 N.Y.3d 179, 185, 21 N.Y.S.3d 179, 42 N.E.3d 676 [2015]). "The prosecution has the burden of showing this direct relevance" (Weinstein, — N.Y.3d at —, — N.Y.S.3d —, — N.E.3d —, 2024 N.Y. Slip Op. 02222, *5). "In reviewing a Molineux ruling, [an appellate court] [f]irst … evaluates whether the prosecution has identif[ied] some issue, other than mere criminal propensity, to which the evidence is relevant" (id. [internal quotation marks omitted]). "This is a question of law, not discretion and [appellate courts] review it de novo" (id. [internal quotation marks omitted]). "Second, if the evidence is relevant to an issue aside from propensity, the [appellate court] determines whether its probative value exceeds the potential for prejudice resulting to the defendant" (id. [internal quotation marks omitted]). "[T]he trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable. Rather, it must constitute an abuse of discretion as a matter of law" (id.).

Here, the Molineux ruling fails at step one. The People sought to admit the evidence, and the trial court did admit the evidence, pursuant to the motive exception to Molineux. We conclude, however, that evidence that defendant allegedly threatened the victim with a knife one month prior to the shooting does not tend to establish defendant’s motive for the shooting. Rather, it was the content of the argument between defendant and the victim during the confrontation in which a knife was allegedly brandished that provided an explanation for defendant’s motive—i.e., that defendant and the victim had argued about the victim’s relationship with defendant’s ex-girlfriend—and testimony describing the content of the argument could have been elicited without reference to defendant’s display of the knife (see People v. Leonard, 29 N.Y.3d 1, 7-8, 51 N.Y.S.3d 4, 73 N.E.3d 344 [2017]; see generally Weinstein, — N.Y.3d at —, — N.Y.S.3d —, — N.E.3d —, 2024 N.Y. Slip Op. 02222, *5-6).

[6] Further, even if the testimony regarding defendant’s display of the knife is relevant to defendant’s motive for the shooting, the court abused its discretion in determining that the probative value of the evidence outweighed its potential for prejudice. Evidence that defendant had previously pulled a knife on the victim during an argument one month earlier "was highly prejudicial, as it showed that defendant had allegedly engaged in [similar] behavior on a prior occasion with the same victim— classic propensity evidence" (Leonard, 29 N.Y.3d at 8, 51 N.Y.S.3d 4, 73 N.E.3d 344). As noted above, evidence of the content of their argument on the date of the shooting could have established the same motive without eliciting evidence of a propensity towards violence. Thus, the proffered Molineux evidence was "of slight value when compared to the possible prejudice to [defendant]" (People v. Arafet, 13 N.Y.3d 460, 465, 892 N.Y.S.2d 812, 920 N.E.2d 919 [2009] [internal quotation marks omitted]).

[7] Nevertheless, the error is harmless inasmuch as there is overwhelming evidence of defendant’s guilt and there is no "significant probability" that the jury would have acquitted defendant but for the error (People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]; see People v. Jones, 208 A.D.3d 1632, 1632-1633, 175 N.Y.S.3d 399 [4th Dept. 2022], lv denied 39 N.Y.3d 986, 181 N.Y.S.3d 180, 201 N.E.3d 797 [2022]; see generally People v. Telfair, 41 N.Y.3d 107, 110, 207 N.Y.S.3d 439, 231 N.E.3d 385 [2023]).

We reject defendant’s contention that he was denied effective assistance of counsel. Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).

Defendant failed to preserve for our review his contentions with respect to the testimony of a law enforcement witness’s prior dealings with defendant (see People v. Jones, 224 A.D.3d 1348, 1351, 204 N.Y.S.3d 836 [4th Dept. 2024]; People v. Dragani, 204 A.D.3d 690, 690, 166 N.Y.S.3d 253 [2d Dept. 2022], lv denied 38 N.Y.3d 1070, 171 N.Y.S.3d 434, 191 N.E.3d 386 [2022]), the testimony of the victim regarding having been wrongfully convicted (see generally People v. Miller, 96 A.D.3d 1451, 1452, 946 N.Y.S.2d 742 [4th Dept. 2012], lv denied 19 N.Y.3d 999, 951 N.Y.S.2d 475, 975 N.E.2d 921 [2012]), and the court’s failure to issue a limiting instruction pursuant to CPL 310.20 (2) (see People v. Allen, 122 A.D.3d 1423, 1424, 997 N.Y.S.2d 202 [4th Dept. 2014], lv denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 [2015], reconsideration denied 25 N.Y.3d 1197, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015]; People v. McCloud, 121 A.D.3d 1286, 1290, 995 N.Y.S.2d 269 [3d Dept. 2014], lv denied 25 N.Y.3d 1167, 15 N.Y.S.3d 299, 36 N.E.3d 102 [2015]). Defendant also failed to preserve for our review his contention that the court penalized him for exercising his right to trial (see People v. Cotton, 184 A.D.3d 1145, 1149, 126 N.Y.S.3d 287 [4th Dept. 2020], lv denied 35 N.Y.3d 1112, 133 N.Y.S.3d 507, 158 N.E.3d 524 [2020]), and his challenges to the order of protection (see People v. Rodriguez-Ricardo, 200 A.D.3d 1734, 1735, 155 N.Y.S.3d 904 [4th Dept. 2021], lv denied 38 N.Y.3d 953, 165 N.Y.S.3d 456, 185 N.E.3d 977 [2022]; People v. Castillo, 151 A.D.3d 1802, 1804, 58 N.Y.S.3d 762 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 581, 89 N.E.3d 1261 [2017]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).

Finally, defendant’s sentence is not unduly harsh or severe.

All concur except Keane, J., who concurs in the result in the following memorandum:

I concur with the majority’s determination to affirm in both appeals but write separately because I respectfully disagree with the majority’s conclusion that, under the Molineux rule (People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901]), Su- preme Court erred in allowing the People to introduce evidence of a prior uncharged bad act.

The majority concludes that the court’s Molineux ruling fails at step one of the analysis because evidence that defendant had allegedly threatened the victim with a knife one month prior to the shooting does not tend to establish defendant’s motive for the shooting, but rather, the motive could be established by the content of the argument between defendant and the victim during that prior confrontation. In my view, however, the evidence of the prior confrontation with the knife is relevant to defendant’s motive, as well as to...