GIBBS, BENJAMIN S., PEOPLE v ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    384
    KA 11-00056
    PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.
    THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
    V                              MEMORANDUM AND ORDER
    BENJAMIN S. GIBBS, DEFENDANT-APPELLANT.
    TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
    COUNSEL), FOR DEFENDANT-APPELLANT.
    SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
    COUNSEL), FOR RESPONDENT.
    Appeal from a judgment of the Monroe County Court (Frank P.
    Geraci, Jr., J.), rendered October 20, 2010. The judgment convicted
    defendant, upon a jury verdict, of predatory sexual assault against a
    child.
    It is hereby ORDERED that the judgment so appealed from is
    unanimously reversed on the law and a new trial is granted on count
    one of the indictment.
    Memorandum: Defendant appeals from a judgment convicting him
    upon a jury verdict of predatory sexual assault against a child (Penal
    Law §§ 130.50 [4]; 130.96). We agree with defendant that County Court
    committed reversible error by admitting evidence of prior bad acts of
    sexual abuse against the victim’s mother and another woman. With the
    assistance of the police, the victim’s mother recorded a telephone
    conversation between herself and defendant, and she made repeated
    references to the prior bad acts throughout the conversation in her
    attempt to have defendant admit to sexually abusing the victim. We
    conclude that the court erred in determining that the references to
    the prior bad acts were admissible because they were inextricably
    interwoven with the allegations against the victim. In the context of
    a recorded call, when references to prior bad acts in the conversation
    are “inextricably interwoven with the crime charged in the
    indictment,” the entire conversation “may be received in evidence . .
    . where . . . the value of the evidence clearly outweighs any possible
    prejudice” (People v Vails, 43 NY2d 364, 368-369). “ ‘To be
    inextricably interwoven . . . the evidence must be explanatory of the
    acts done or words used in the otherwise admissible part of the
    evidence’ ” (People v Swanson, 103 AD2d 1024, 1024, quoting People v
    Ventimiglia, 52 NY2d 350, 361). Here, we conclude that the disputed
    references were not explanatory of the rest of the conversation. The
    statements regarding defendant’s prior bad acts were numerous, but
    -2-                           384
    KA 11-00056
    they could have been redacted from the transcript of the recorded call
    without making the statements regarding the victim incomprehensible
    (see Swanson, 103 AD2d at 1024). In other words, the statements
    concerning the victim are “clearly understandable” by themselves and
    are “not dependent upon” the statements concerning defendant’s prior
    bad acts (id.). We further conclude that the prejudicial effect of
    those numerous references to the prior bad acts outweighed any
    probative value, and the references therefore should have been
    redacted (see People v Resek, 3 NY3d 385, 389).
    We further agree with defendant that the court abused its
    discretion in its Sandoval ruling. The court ruled that defendant
    could be cross-examined with respect to a prior offense if he were to
    testify because that evidence was already admitted through the
    recorded telephone call. In so ruling, the court failed to balance
    the probative value of the evidence with the prejudicial effect (see
    People v Williams, 56 NY2d 236, 238-239; People v Clark, 42 AD3d 957,
    959, lv denied 9 NY3d 960). We agree with defendant that the above
    errors are not harmless inasmuch as the proof against defendant was
    not overwhelming (see generally People v Crimmins, 36 NY2d 230, 241-
    242).
    Entered:   March 20, 2015                       Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: KA 11-00056

Filed Date: 3/20/2015

Precedential Status: Precedential

Modified Date: 10/7/2016