People v. Jackson , 814 N.Y.S.2d 627 ( 2006 )

Judgment, Supreme Court, Bronx County (John S. Moore, J.), rendered October 29, 2003, convicting defendant, after a jury trial, of three counts of rape in the second degree, and sentencing him, as a second felony offender, to concurrent prison terms of 37a to 7 years on each conviction, modified, on the law, to the extent of vacating the provisions for sex offender registration and DNA databank fees, and otherwise affirmed.

At defendant’s rape trial, the court correctly admitted evidence of a prior uncharged crime in which defendant allegedly raped the family’s 19-year-old babysitter. The court allowed it as background for a statement defendant allegedly made during that earlier incident to the effect that if the babysitter were not there, it would have been the 14-year-old complainant (i.e., “He told me that [complainant] was lucky I was there, because if I wasn’t there, it would be her”).

Turning first to the meaning of defendant’s statement, our dissenting colleague states that it “requires a perversion of the English language to describe [defendant’s] words as a statement of future intent, future threat or future inclination,” reasoning that “[t]he statement in issue refers patently to the here and now, to the situation that the defendant and [the babysitter] found themselves in on the night the statement was made.” We disagree. Rather, we find the statement is unquestionably a reflection of defendant’s overall general intent, including his future intent. Defendant’s statement is probative of his intent for the future despite the particular language he used to hedge his then present thoughts expressing that abundantly clear intent. The obvious interpretation is that defendant meant that, but for the present victim, he would instead be having sex with the 14-year-old complainant. Put another way, defendant’s statement is a threat or a manifestation of his intent to carry out an injurious action against a particular victim in identical circumstances. Surely, jurors are empowered to interpret a defendant’s statement in a reasonable way, rather than to blindly accept a statement at face value without considering context and other circumstances (see People v Smith, 79 NY2d 309, 315 [1992]).

At the pretrial hearing, the court correctly concluded that defendant’s statement was more than merely relevant, but “key” to the People’s case and that it was admissible. The statement was properly admitted as circumstantial evidence that defendant intended to take a particular course of action and that defendant did in fact take that particular course of action (see Stokes v People, 53 NY 164, 174-175 [1873]; People v Bierenhaum, 301 AD2d 119, 150 [2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003]). As observed by the Court of Appeals over a century ago (Stokes, 53 NY at 175): “Threats to commit the crime for which a person is upon trial are constantly received as evidence against him, as circumstances proper to be considered in determining the question whether he has, in fact, committed the crime, for the reason that the threats indicate an intent to do it, and the existence of this intention creates a probability that he has in fact committed it.” Thus, defendant’s statement was properly admitted as indicative of his future intent to harm this particular complainant. Indeed, this Court has also allowed this type of testimony even when the defendant killed the victim and a third person related the victim’s earlier statement expressing defendant’s intention to harm or kill the very same victim (see Bierenbaum, 301 AD2d at 150; People v Bonilla, 251 AD2d 82 [1998], lv denied 92 NY2d 893 [1998]; People v LaFrance, 182 AD2d 598 [1992], lv denied 80 NY2d 905 [1992]). Here, the witness testified firsthand to a statement defendant made directly to her. Therefore, under clearly established principles, his statement was properly admitted.

Defendant’s statement was properly admitted for the additional reason that it was important “background evidence” serving “to complete the narrative.” Specifically, complainant reported to the babysitter that defendant sexually assaulted her. As the prosecutor argued, the babysitter’s testimony both about defendant’s acts against her and his statement to her concerning the complainant was “necessary to complete the narrative as to why no one was told.” We note as well that the complainant also testified that before she first was attacked by defendant, he woke her up one morning and discovered she had allowed a boy who had been “kicked out” of his own home to sleep in her room. When defendant told her the boy had to leave, she begged defendant not to tell her mother. He replied that her mother was on the phone. Afraid defendant would tell her mother, the complainant herself told her mother about the boy.

As the complainant herself testified without objection, one reason she did not tell her mother about defendant’s sexual assault was, “I didn’t think my mother was going to believe me, ‘cause I just finished getting in trouble ...” (because she allowed the boy to sleep in her room). Accordingly, absent the babysitter’s testimony, the prosecution would have been unfairly deprived of a basis for answering the charge—which indeed defense counsel suggested on summation—that the complainant had fabricated defendant’s sexual assault in retaliation for defendant having gotten her into trouble with her mother over the boy she had allowed in her room.

Alternatively, defendant’s statement is an admission and, therefore, properly received into evidence^* (see Prince, Richardson on Evidence § 8-201 [Farrell 11th ed] [generally, “any declaration or conduct of a party which is inconsistent with the party’s position on trial may be given in evidence against the party as an admission”]; see e.g. People v Burke, 96 AD2d 971 [1983], affd 62 NY2d 860 [1984]). In People v Burke, the witness testified that about two weeks after the fire defendant was charged with setting, he asked defendant whether defendant had covered his tracks. Defendant replied, “yes, there was nothing to worry about, he had left nothing behind, no one could find anything” (id. at 971). The Appellate Division found defendant’s statements “certainly probative of [his] guilt” and admissible as circumstantial evidence (id. at 972).

Accordingly, the trial court properly admitted, through the babysitter’s testimony, defendant’s statement. Concomitantly, the court also properly admitted the babysitter’s testimony regarding the related uncharged crime. Defendant maintains that the court improperly admitted this testimony in violation of state evidentiary principles. Defendant, for the first time on appeal, also argues that the admission of this testimony violated his federal constitutional right to a fair trial. However, his federal constitutional objection was not preserved at the trial level. In any event, defendant was not deprived of his rights to a fair trial. It is beyond cavil that evidence of an uncharged crime is inadmissible if the sole purpose is to demonstrate propensity (see People v Blair, 90 NY2d 1003, 1004-1005 [1997]; People v Ventimiglia, 52 NY2d 350, 359 [1981]; People v Allweiss, 48 NY2d 40, 46 [1979]). However, evidence of an uncharged crime is admissible if linked to a specific material issue or fact relating to the crime charged and if its probative value outweighs any prejudicial impact (see People v Hudy, 73 NY2d 40, 54-55 [1988]; People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Walker, 265 AD2d 254, 255 [1999], lv denied 94 NY2d 908 [2000]).

The threshold inquiry in identifying a specific issue other than propensity is a question of law, while the balancing of prejudicial impact and probative value is discretionary (see Hudy, 73 NY2d at 55). Here, we find that the trial court did not err in allowing the babysitter to testify about the uncharged crime, where that act was inextricably interwoven with the statement—a statement which the court had properly determined was “key” to the People’s case and admissible—and where presentation of the statement outside the context of the act would have rendered it meaningless to the jury (see People v Feliciano, 301 AD2d 480 [2003], lv denied 100 NY2d 538 [2003]). Nor did the court improvidently exercise its discretion in determining that its probative value outweighed any prejudicial impact.

Defendant also argues that the babysitter’s testimony about the alleged uncharged crime was inadmissible to prove intent regarding the charged crimes because intent may be inferred from the crime itself (see e.g. People v Vargas, 88 NY2d 856, 858 [1996]; People v Hudy, supra). Here, however, the prior uncharged crime was not admitted to demonstrate that defendant’s conduct toward the complainant was an intentional act, but to place into context defendant’s properly admitted statement about his future intent.

The court, throughout the trial, took great pains to insure that any potential prejudice to defendant was minimized. In its pretrial ruling, the court placed limits on the scope of the babysitter’s testimony instructing the People to “keep this to a minimum in terms of this witness’ testimony.” The court reiterated in its pretrial ruling that the People were not to conduct a “lengthy direct examination” of the babysitter and to keep her testimony “as brief as possible.” The court also denied the People’s request to allow the babysitter to testify to a second similar incident involving defendant and her. In addition to these limitations, the court specifically instructed the jury bn two separate occasions regarding the babysitter’s testimony. The court first instructed the jury, contemporaneous with the babysitter’s testimony, that her testimony concerning the “sexual activity” between the defendant and her was not admitted as proof of propensity or disposition to commit the crimes charged in the indictment, but rather was admitted as background evidence to provide a context for the statement and to complete the narrative. In addition, the court instructed the jury that the People offered the babysitter’s testimony for the purpose of establishing defendant’s motive, state of mind, and future intent. The court further instructed the jurors that it was up to them to determine whether the statement was in fact made by the defendant. If they found that defendant had not made the statement, they were instructed to ignore it. If they found that defendant had made the statement, they were instructed that they “may” consider the statement together with the other evidence in the case. Finally, the court instructed the jury that such evidence may be considered only for this limited purpose and no other. In its charge to the jury at the end of the case, the court gave a similar instruction regarding the babysitter’s testimony. The court’s limitation of the babysitter’s testimony together with its instructions to the jury on two separate occasions regarding the limited purpose of her testimony obviated any undue prejudice to defendant (see People v Berry, 267 AD2d 102 [1999], lv denied 95 NY2d 793 [2000]; People v Walker, supra; People v Bonilla, supra).

Defendant’s reliance on People v Resek (3 NY3d 385 [2004]) is misplaced. There, to fill the gap in the narrative, the trial court allowed testimony of an uncharged crime involving a stolen car during the defendant’s trial for criminal possession of a controlled substance with intent to sell. Specifically, the police officer testified that the police had monitored the car defendant was driving based on a report it was stolen. The defendant was accused of drug possession with intent to sell based on the search of the car he was driving. Although the grand jury had specifically refused to indict the defendant for possession of a stolen car, the court erroneously instructed the jury that “it is not in any way to be inferred by you that the defendant did or did not steal the car or anything of the kind” (id. at 388). Here, the grand jury did not decline to charge defendant in connection with his alleged sexual assault of the babysitter, the babysitter’s testimony was limited in scope, and the court delivered detailed and proper limiting instructions to the jury on two occasions, one during her testimony, and one after summations. Furthermore, here, unlike Resek, the uncharged crime was essential to explain the babysitter’s comment about defendant’s future intent and to place it in its proper context.

As the People concede, since defendant committed the instant crime prior to the effective date of Penal Law § 60.35 which provides for the imposition of sex offender registration and DNA databank fees, defendant’s sentence is unlawful to the extent indicated (see People v Febres, 11 AD3d 319 [2004]). Concur—Marlow, J.P., and Williams, J.

* We need not address the People’s contention that defendant’s statement was properly received pursuant to Mutual Life Ins. Co. v Hillmon (145 US 285 [1892]), as we find the statement otherwise acceptable into evidence as an admission. In any event, we would agree that Hillmon affords additional support for the admissibility of defendant’s statement as it is clearly probative of his future intent, his state of mind, his motive, and his future threat against this complainant (see also United, States v Pheaster, 544 F2d 353, 376 [9th Cir 1976], cert denied sub nom. Inciso v United States, 429 US 1099 [1977]). While we agree with our dissenting colleague that the Hillmon rule of evidence is typically invoked to prove that a declarant carried out an intention to meet with someone, we part company with his reasoning by observing that Hillmon does not limit its rationale only to that fact pattern.