Opinion
2016–04751 Ind. No. 2149/14
11-25-2020
The PEOPLE, etc., respondent, v. John DUNCAN, appellant.
Janet E. Sabel, New York, NY (Harold V. Ferguson, Jr., of counsel), for appellant, and appellant pro se. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Sullivan & Cromwell LLP [Joshua D. Tannen ] of counsel), for respondent.
Janet E. Sabel, New York, NY (Harold V. Ferguson, Jr., of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Diane R. Eisner, and Sullivan & Cromwell LLP [Joshua D. Tannen ] of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John G. Ingram, J.), rendered April 18, 2016, convicting him of burglary in the first degree as a sexually motivated felony, robbery in the first degree as a sexually motivated felony, attempted rape in the first degree, and sexual abuse in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the conviction of attempted rape in the first degree under count seven of the indictment, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on that count of the indictment.
The defendant was convicted, after a jury trial, of, among other things, robbing and sexually assaulting the complainant in the stairwell of the Brooklyn apartment building in which she lived, after following her from a grocery store. The complainant did not see her attacker's face, but provided a physical description of the perpetrator, which led to the arrest of the defendant. Following a pre-trial hearing, pursuant to People v. Molineux, 168 N.Y. 264, 61 N.E. 286, the Supreme Court permitted the People to present evidence on their case in chief at trial pertaining to the defendant's convictions for robbery and sexual assault in 1990.
Contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of attempted rape in the first degree ( Penal Law §§ 110.00, 130.35[1] ) beyond a reasonable doubt (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). From the evidence presented, a jury could logically conclude that the defendant intended to engage in sexual intercourse with the complainant by forcible compulsion, and that he came dangerously close to the completion of that act (see People v. Clyde, 18 N.Y.3d 145, 155, 938 N.Y.S.2d 243, 961 N.E.2d 634 ; People v. Kassebaum, 95 N.Y.2d 611, 618, 721 N.Y.S.2d 866, 744 N.E.2d 694 ). Further, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict convicting the defendant of attempted rape in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 643, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
However, the Supreme Court erred in permitting the People to present Molineux evidence at trial pertaining to the defendant's convictions for a robbery and sexual assault in 1990. "[E]vidence of other crimes may be admitted to show motive, intent, the absence of mistake or accident, a common scheme or plan or the identity of the guilty party" ( People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735, citing People v. Molineux, 168 N.Y. at 293, 61 N.E. 286 ). Evidence of a defendant's uncharged crimes may be admitted to establish the defendant's identity where the same has not been "conclusively established" by other evidence ( People v. Allweiss, 48 N.Y.2d at 47, 421 N.Y.S.2d 341, 396 N.E.2d 735 ; see People v. Littlejohn, 112 A.D.3d 67, 73–74, 974 N.Y.S.2d 77 ), and where it is demonstrated by clear and convincing evidence that the defendant is the same person who committed the other crimes (see People v. Robinson, 68 N.Y.2d 541, 548–550, 510 N.Y.S.2d 837, 503 N.E.2d 485 ). This exception "is used in limited circumstances, when the defendant employs some unique, unusual, or distinctive modus operandi in an uncharged crime that is relevant to proving his identity as the perpetrator of the crime charged" ( People v. Mateo, 93 N.Y.2d 327, 332, 690 N.Y.S.2d 527, 712 N.E.2d 692 ; see People v. Beam, 57 N.Y.2d 241, 253, 455 N.Y.S.2d 575, 441 N.E.2d 1093 ).
Here, contrary to the People's contention, the similarities between the alleged 1990 robbery and sexual assault and the attack on the complainant were not sufficiently unique or unusual and did not establish a distinctive modus operandi relevant to establishing the defendant's identity as the perpetrator in this case. While both incidents involved robberies and sexual assaults of unaccompanied Caucasian women, during daytime hours, in the lobbies of residential buildings, these similarities were not so unique as to give rise to an inference that the perpetrator of each crime was the same individual (see People v. Littlejohn, 112 A.D.3d at 76–77, 974 N.Y.S.2d 77 ; see also People v. Wright, 121 A.D.3d 924, 927, 994 N.Y.S.2d 396 ). Accordingly, the Supreme Court erred in permitting the People to present evidence regarding the 1990 robbery and assault in order to establish the defendant's identity (see People v. Littlejohn, 112 A.D.3d at 77, 974 N.Y.S.2d 77 ; see also People v. Martinez, 148 A.D.3d 826, 827, 48 N.Y.S.3d 733 ).
The error was harmless as to all of the charges except the attempted rape in the first degree since the proof of the defendant's guilt, without reference to the erroneously admitted Molineux evidence, was overwhelming as to those other charges, and there was no reasonable possibility that the jury would have acquitted the defendant on those charges had it not been for the error (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Littlejohn, 112 A.D.3d at 77, 974 N.Y.S.2d 77 ). Furthermore, the erroneous admission of the Molineux evidence did not deprive the defendant of a fair trial (see People v. Crimmins, 36 N.Y.2d at 237–238, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Littlejohn, 112 A.D.3d at 77, 974 N.Y.S.2d 77 ). We reach a different conclusion with respect to the defendant's conviction of attempted rape in the first degree. Because the evidence of the defendant's guilt of that charge was not overwhelming, the error cannot be deemed harmless, and the defendant's conviction of that charge must be vacated and a new trial ordered as to that charge (see People v. Crimmins, 36 N.Y.2d at 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; see also People v. Myers, 22 N.Y.3d 1010, 1011, 981 N.Y.S.2d 346, 4 N.E.3d 356 ).
The sentence imposed on the defendant's remaining convictions was not excessive.
The defendant's remaining contention in his pro se supplemental brief is without merit (see People v. Keen, 94 N.Y.2d 533, 538–539, 707 N.Y.S.2d 380, 728 N.E.2d 979 ).
RIVERA, J.P., DILLON, MALTESE and DUFFY, JJ., concur.