People v. Noriega

• Citation: 160 Misc.2d 632,610 N.Y.S.2d 739
• Parties: The PEOPLE of the State of N.Y., Plaintiff, v. John Paul NORIEGA, Defendant.
• Decision Date: 09 March 1994
• Court: United States State Supreme Court (New York)

Page 739

610 N.Y.S.2d 739

160 Misc.2d 632

The PEOPLE of the State of N.Y., Plaintiff, v. John Paul NORIEGA, Defendant.

Supreme Court, Criminal Division Bronx County, Part 58.

March 9, 1994.

Robert T. Johnson, Dist. Atty. of Bronx County (Donald Levin, Asst. Dist. Atty.), for the People.

Charles Giulini, New York City, for defendant.

JOSEPH FISCH, Justice.

Defendant was indicted for the crimes of Rape, Kidnapping and related offenses based on allegations that he and co-defendant, Monique Jackson, kidnapped a twelve-year-old girl (complainant), raped her and forced her to engage in acts of prostitution. While the defendant was incarcerated pending these charges, the complainant was allegedly kidnapped by defendant's mother and three others. The People allege that said kidnappers brought the complainant to a diner where she received a telephone call from defendant, who told her to accompany her captors. The People further allege that the complainant was then taken to motels in New Jersey where she was guarded by members of the defendant's prostitution ring, following which she was taken to Omaha, Nebraska, and then to Des Moines, Iowa. In December 1992 the Bronx District Attorney's Office supplied information to out-of-state authorities, enabling them to locate and rescue the complainant and return her safely to New York. The People moved, pursuant to People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981) for a ruling permitting them to adduce evidence on their direct case concerning the second kidnapping on the ground that, inter alia, it is "other crimes" evidence admissible as so probative of identity and a common scheme or plan that the probative value outweighs its potential for prejudice under the "Molineux doctrine" [People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901) ] and that it evidences consciousness of guilt.

The People concede that in order to admit evidence of an uncharged crime, they must prove the defendant's involvement by clear and convincing evidence. (See, People v. Robinson, 68 N.Y.2d 541, 510 N.Y.S.2d 837, 503 N.E.2d 485 (1986)) Defense counsel contends that not only would the evidence of the alleged second crime be unduly prejudicial, but that it is not, per se, within the exceptions under People v. Molineux, supra. Further, the defense argues that the fact that the People have not seen fit to indict the defendant for the alleged second crime establishes that their evidence of the same is insubstantial. The Court concludes, for the reasons set forth herein, that if the People can establish, outside of the presence of the jury, clear and convincing evidence of defendant's involvement in the second kidnapping, the Court will admit this evidence on the People's direct case with appropriate cautionary instructions. See People v. Robinson, supra, at 550, 510 N.Y.S.2d 837, 503 N.E.2d 485, citing 1 C.J.I. [NY] 12.20.

(1) Molineux Rule Applies to Evidence of Subsequent Crime Against Same Victim

The rule excluding evidence of other uncharged crimes committed by a defendant, the "Molineux doctrine" (People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901)) is not absolute.

Although most cases involving the Molineux doctrine are concerned with the admission of evidence of unrelated crimes which the defendant allegedly committed before the crime for which he stands charged, the principles are equally applicable to evidence of crimes allegedly committed by defendant after the crime for which he or she is tried. See, e.g., People v. Dupree, 110 A.D.2d 777, 487 N.Y.S.2d 847 (2d Dept., 1985); People v. Powell, 107 A.D.2d 718, 484 N.Y.S.2d 75 (2d Dept., 1985); People v. Gines, 36 N.Y.2d 932, 373 N.Y.S.2d 543, 335 N.E.2d 850 (1975). As the New York Court of Appeals stated in People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59 (1981):

"There is no litmus paper test for determining when the probative value of the evidence outweighs its potential for prejudice. Attempts to categorize situations in which evidence of prior crime is admissible have yielded Molineux's well-known listing (168 N.Y. at p. 293, of '(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; (5) the identity of the person charged with the commission of the crime on trial', but even that listing is acknowledged to be 'merely illustrative' (People v. Vails, [43 N.Y.2d 364, 368 (401 N.Y.S.2d 479, 372 N.E.2d 320) (1977) ] and 'not exhaustive' (People v. Santarelli, 49 N.Y.2d 241, 248 [425 N.Y.S.2d 77, 401 N.E.2d 199] (1980)) or capable of statement with 'categorical precision' (People v. Molineux, supra, at p. 293, ."

There is a relatively small body of decisional law in New York involving the introduction on the People's direct case, of evidence of other crimes committed against the same victim. However, the law is clear, both in New York and sister states, that evidence of a subsequent crime against the same victim may be highly probative of identity and a common scheme or plan directed against the same victim. In People v. Grant, 104 A.D.2d 674, 479 N.Y.S.2d 914 (3d Dept., 1984), the Appellate Division, Third Department held that in the trial of a defendant for coercing a woman into acts of prostitution in Albany County, the People on their direct case were properly permitted to adduce the complainant's testimony that after the crimes charged in the indictment, the defendant forced her to engage in other acts of prostitution in New York City. The Court noted in Grant, supra, at 674-675, 479 N.Y.S.2d 914, that "where the charged crimes are not single instance crimes, such as robbery, assault or rape, but crimes that cover a lengthy period of time during which the defendant subdues the victim's will through physical force, intimidation and fear, evidence of such crimes is highly probative of the charged crime and outweighs the potential prejudice to the accused (People v. Ventimiglia, [supra]; People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735 (1978)) ... "(T)he evidence of uncharged crimes both prior and subsequent to the date of the charged crimes was highly probative to show defendant's intent, motive and common plan, scheme or design to commit the crimes of promoting prostitution and coercion (People v. Molineux, supra, p. 291, 61 N.E. 286)."

(2) Evidence of Other Crimes Against Same Victim; National Overview

In other states, the rule governing the admissibility of other crimes evidence, whether based in case law or codified by statute is substantially the same as New York's Molineux doctrine. Under this rule, out-of-state courts have admitted evidence of prior or subsequent crimes directed against the same victim, even though the defendant was not indicted for these crimes. A condition precedent to admission of evidence of a subsequent crime directed against the same victim is the trial court's determination of its reliability and relevance to the issues in that state's Molineux equivalent.

(a) Other Crimes Evidence Against Same Victim Admitted as Probative of Identity

Sister states admit evidence of other crimes directed against the same victim as highly probative of identity, whether these other crimes were committed before or after the crime for which the defendant is standing trial. See, e.g., Green v. United States, 580 A.2d 1325 (D.C.App., 1990), where the District of Columbia's Drew rule, derived from Drew v. United States, 331 F.2d 85 (1964), permitted as probative of identity, the introduction on the Government's direct case of evidence of prior crimes committed against the victims of murder and assault with intent to kill; to the same effect see, Hill v. United States, 600 A.2d 58 (D.C.App., 1991); Hazel v. United States, 599 A.2d 38 (D.C.App., 1991); Weathersby v. State, 262 Ga. 126, 414 S.E.2d 200, 202 (1992); Kilgore v. State, 251 Ga. 291, 305 S.E.2d 82 (1983) (citing OCGA Sec. 24-9-20) (Code Ann. Sec. 38-415, 38-416); Adcock v. Commonwealth, 702 S.W.2d 440 (Ky., 1986) (citing Arnett v. Commonwealth, 470 S.W.2d 834 (Ky., 1971)); Bevers v. State, 811 S.W.2d 657 (Tex.App., 2d Dist., Ft. Worth, 1991) (citing Texas R.Crim.Evid. 404(b)); State v. Valles, 162 Ariz. 1, 780 P.2d 1049 (1989) (citing Rule 404(b) Arizona Rules of Evidence); People v. Sanders, 103 Ill.App.3d 700, 59 Ill.Dec. 388, 431 N.E.2d 1145 (1981) (evidence of prior robbery of murder victim admissible with limiting instruction, citing I.P.I. Criminal No. 3.14); People v. Harris, 91 Ill.App.3d 112, 46 Ill.Dec. 702, 414 N.E.2d 755 (1980) (evidence of subsequent robbery against same victims admissible as probative of identity and necessary to explain to the jury why victims made the positive identification of defendant at a relatively late date); In the Interest of Hatfield, 72 Ill.App.3d 249, 28 Ill.Dec. 286, 390 N.E.2d 453 (1st Dist., 1979) (evidence of prior robberies of same victim admissible in delinquency proceeding against appellant as probative of identity); see, also, Commonwealth v. Burdell, 176 Pa.Super. 219, 107 A.2d 739 (1954) (evidence of prior extortion of burglary and robbery victim's husband two days earlier admitted as probative of identity and showing common scheme or plan directed against the same people); Williams v. State, 350 So.2d 707 (Ala.Cr.App., 1977) (evidence of subsequent robbery of same victim admissible as evidence of identity); to the same effect State v. Jones, 26 Ariz.App. 66, 546 P.2d 43 (1976); but see People v. Butler, 31 Ill.App.3d 78, 334 N.E.2d 448 (2d Dist., 1975) where the court held that reversible error resulted from the prosecution's elicitation from the witness of numerous unnecessary details of the prior robbery against the same victim committed by defendant. This testimony raised collateral issues which unduly prejudiced the defendant and created the possibility of confusing...