People v. Robinson

• Decision Date: 18 December 1986
• Parties: , 503 N.E.2d 485 The PEOPLE of the State of New York, Respondent, v. John R. ROBINSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 837

510 N.Y.S.2d 837

68 N.Y.2d 541, 503 N.E.2d 485

The PEOPLE of the State of New York, Respondent, v. John R. ROBINSON, Appellant.

Court of Appeals of New York.

Dec. 18, 1986.

[503 N.E.2d 487] William J. Comiskey, Troy, for appellant

[68 N.Y.2d 544] Sol Greenberg, Dist. Atty. (George H. Barber and Cheryl F. Coleman, Albany, of counsel), for respondent.

OPINION OF THE COURT

MEYER, Judge.

For other crime evidence to be admissible on the issue of identity, the identity of defendant as the perpetrator of the other crime, if not conceded or previously adjudicated, must be established by clear and convincing evidence. Because the only evidence connecting defendant with a prior bank robbery--the similarity of some of the clothing worn and how it was worn, of the wording of the notes handed the teller and the writing on the notes, in the two robberies--was insufficient to permit introduction of the highly prejudicial prior crime evidence presented, and because of additional trial errors detailed below, there should be a reversal of the Appellate Division's order affirming defendant's conviction, 114 A.D.2d 120, 498 N.Y.S.2d 506, and a new trial.

I

On December 12, 1978, Lettie Pinney, a teller at the Central Avenue branch of Home Savings Bank in Albany was handed a large manila envelope upon which there was a letter-size white envelope covered by a yellow withdrawal slip. She approximated the height of the man who handed it to her as over five and a half feet and his age as in his twenties, and testified that he had a light brown moustache, a dark colored knit hat pulled down almost to his eyebrows, a dark colored scarf pulled up to his chin, wore a tan coat and a knit glove on the hand with which he handed her the envelope, and carried a dark colored rectangular briefcase under his arm. Another bank customer, standing in the line of the teller next to Ms. Pinney, saw the note being passed, but as he turned toward that line the man was halfway to the door. He described the man as approximately six-feet tall, wearing a dark scarf that hung down his back and had come completely around his face, and a dark, loosely fitting coat that came down to between his waist and his hips. However, at the trial neither the teller nor the customer was able to identify defendant as the individual who presented the note, and the video tape pictures taken by the bank's surveillance cameras were too blurred and the portion of the perpetrator's face too limited to permit positive identification from them.

Printed on the white envelope was:

"THIS IS A HOLDUP

"YOUR LIFE IS ININ

"DANGERER

"PUT 100S 50S 20S IN BAGAG

"KEEP HANDS IN SIGHTHT

"AT ALL TIMES".

After reading the note, the teller asked, "What do you want me to do with this?" and, receiving no response, handed the note to the next teller, whereupon the man walked rapidly toward the door. The police were not called until about 10 minutes later, the tellers being undecided whether the incident was a joke or a real holdup.

After the presentation of Ms. Pinney's testimony, the People moved under People v. Molineux, 168 N.Y. 264, 61 N.E. 286, for permission to present evidence of the successful robbery on December 5, 1978 of the Central Savings and Loan Association, also located on Central Avenue in Albany, which, it was argued, involved the same modus operandi as that used in the Home Savings robbery attempt and was being offered both to establish identity and, with respect to intent, to show that the Home Savings incident was not a hoax. The motion was granted on both grounds, subject to foundation proof. Testimony was then presented by Vickie Owens, a teller at Central Savings, the court having first instructed the jury concerning the limited purposes for which the testimony was being received, that on December 5, 1978, a white male of medium build, about 5 feet 10 inches tall and weighing approximately 160 to 170 pounds, who had a reddish brown moustache, freckles and brown eyes, wore a navy blue pea coat and a blue ski cap and had a navy blue scarf pulled up to his upper lip, had handed her two envelopes, one a white envelope of standard size, the other a brown manila envelope. On the white envelope printed in pencil was the following note:

"THIS IS A HOLDUP!

"YOUR LIFE IS IN

"DANGER

"PUT 100s 50s 20s IN BAG

"REMAIN CALM FOR

"YOUR OWN SAFETY".

She placed $1,830 in the manila envelope and as the man walked away activated the bank's surveillance camera. She was, however, unable to identify defendant as the robber and the surveillance photographs, introduced in evidence, were, like those from the Home Savings incident, either blurred or of too limited a portion of the perpetrator's face to permit identification.

Testimony was also presented, through a State Police document analyst, that the hand printing on both of the notes was the same as that on the student loan, financial and manpower applications filed by defendant with the State University at Albany (SUNYA), where defendant was a student, and through an FBI fingerprint specialist that three of the prints lifted from the Homes Savings note and one from the Home Savings manila envelope matched defendant's fingerprints on his police arrest card. Defendant's former girlfriend testified that defendant was a compulsive gambler, that she had loaned him $1,900 and that in the late afternoon or evening of December 5, 1978 he had repaid her $500, giving her two $50 bills and the rest in $20s.

Defendant introduced testimony of his roommate and another student that at the time of the Home Savings robbery attempt defendant was in his dormitory room reading a book and conversing with other students. He also presented the expert opinion of the retired deputy director of the State Identification and Intelligence System that the fingerprints taken from the Home Savings envelopes did not provide sufficient ridge characteristic data upon which to base an identification against an inked print and that none of them were identifiable as those of defendant.

The jury found defendant guilty of attempted robbery in the third degree (Penal Law §§ 160.05, 110.00). On appeal to the Appellate Division, that court affirmed in an opinion (114 AD2d 120), holding, among other things, that identity was a crucial issue and the conduct of the two crimes was sufficiently unique to permit proof of the uncharged Central Savings robbery. The matter is before us by leave of a Judge of this court, 67 N.Y.2d 949, 502 N.Y.S.2d 1043, 494 N.E.2d 128. Before us defendant raises a number of issues in addition to the Molineux question. Because we conclude that error on that question requires reversal and a new trial, we set forth below our reasons for that conclusion and pass on only such other questions raised by defendant as can be expected to arise upon retrial.

II

The Molineux rule excludes evidence of uncharged crimes when the danger that the jury may, on the basis of such testimony, convict, even though not convinced of defendant's guilt of the crime charged beyond a reasonable doubt, is not overcome by the probative value of the prior crime evidence in relation to the crime now charged (People v. Ventimiglia, 52 N.Y.2d 350, 359-360, 438 N.Y.S.2d 261, 420 N.E.2d 59; People v. Santarelli, 49 N.Y.2d 241, 247, 425 N.Y.S.2d 77, 401 N.E.2d 199). So where defendant's identity as the perpetrator of the crime for which he is on trial "is conclusively established," evidence of a prior crime, though committed in the same unique manner as the crime for which defendant is being tried, is not admissible (People v. Condon, 26 N.Y.2d 139, 142, 309 N.Y.S.2d 152, 257 N.E.2d 615 [italics in original] ). But where the defense is mistaken identity and the testimony of the single eyewitness is extensively impeached, evidence of an uncharged crime is admissible (id., at p. 142, 309 N.Y.S.2d 152, 257 N.E.2d 615; People v. Beam, 57 N.Y.2d 241, 251, 455 N.Y.S.2d 575, 441 N.E.2d 1093), provided the modus operandi is so unique as to make the evidence highly probative (People v. Allweiss, 48 N.Y.2d 40, 421 N.Y.S.2d 341, 396 N.E.2d 735; People v. Condon, supra, at p. 144, 309 N.Y.S.2d 152, 257 N.E.2d 615).

What has not been sufficiently established by our case law is the degree to which defendant's identity as the perpetrator of the uncharged crime must be established in order to make proof with respect to it admissible. Molineux stated the obvious in noting that (168 N.Y. at p. 316, 61 N.E. 286) "an inference [of identity] might be justified if it had been shown conclusively that the defendant had killed [the victim of the uncharged cyanide poisoning murder] and that no other person could have killed [the present cyanide poisoning victim]", but held that no such evidence had been given; People v. Allweiss (supra) involved a defendant who had pleaded guilty to a number of prior uniquely committed rapes; and, at the other end of the spectrum, People v. Johnson, 47 N.Y.2d 785, 417 N.Y.S.2d 925, 391 N.E.2d 1006, cert. denied 444 U.S. 857, 100 S.Ct. 116, 62 L.Ed.2d 75, held it without probative value on defendant's case that the victim of another rape committed under similar circumstances could not identify him.

Wigmore, Evidence (Chadbourn rev. ed.) appears to accept a conclusiveness standard (vol. 2, at 259 ["To identify a defendant as the perpetrator of the crime charged, it may become necessary to show former conduct of his, known to be the conduct of the perpetrator "] [emphasis supplied] ), while the Second Circuit, at least with respect to willfulness, has held that a preponderance standard is sufficient (United States v. Leonard, 524 F.2d 1076, 1091 (2nd Cir.), cert. denied 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202; see, United States v. Smith, 727 F.2d 214, 220 (2nd Cir.)).

Neither the Federal Rules of Evidence (rule 404[b] [in 28 U.S.C. Appendix] ) nor the proposed New York Code of Evidence ( § 404[b]) indicates the precise standard for admissibility of other...