Summary
In People v Small (12 NY3d 732 [2009]), a case in which the defendant did not present any defense witnesses, this Court held that, in response to the defendant's attempt to establish an agency defense during the People's case, the lower court "did not abuse its discretion in permitting the People to present Molineux evidence" on the issue of intent (id. at 733).
Summary of this case from People v. ValentinOpinion
No. 18.
Argued January 14, 2009.
Decided February 12, 2009.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered February 1, 2008. The Appellate Division affirmed a judgment of the Monroe County Court (John R. Schwartz, J.), which had convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree and unlawful possession of marihuana.
People v Small, 48 AD3d 1110, affirmed.
Timothy P. Donaher, Public Defender, Rochester ( William Clauss of counsel), for appellant.
Michael C. Green, District Attorney, Rochester ( Wendy Evans Lehmann and Kelly Christine Wolford of counsel), for respondent.
Before: Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
While a defendant is not entitled as a matter of law to pretrial notice of the People's intention to offer evidence pursuant to People v Molineux ( 168 NY 264) or to a pretrial hearing on the admissibility of such evidence ( see generally People v Ventimiglia, 52 NY2d 350, 362; People v Torres, 300 AD2d 46, 46-47 [1st Dept 2002]; cf. CPL 240.43), we outlined in People v Ventimiglia a procedure to be followed in order to avoid unfairness to the defendant. We noted that a prosecutor seeking to introduce Molineux evidence "should ask for a ruling out of the presence of the jury" [ Ventimiglia, 52 NY2d at 362), and that any hearing with respect to the admissibility of such evidence should occur either before trial or, at the latest, "just before the witness testifies" ( id.). Contrary to defendant's contention, there is no requirement that such inquiry or ruling occur before trial commences.
Here, County Court granted the People's application to allow the Molineux evidence midtrial in response to defendant's attempt to establish an agency defense. Moreover, the court provided a proper limiting instruction, telling the jury that the evidence was "no proof whatsoever that [defendant] possessed a propensity or disposition to commit the crime charged in the indictment" but was offered "solely for rebutting the defense of agency on the issue of intent." In these circumstances, County Court did not abuse its discretion in permitting the People to present Molineux evidence.
Chief Judge LIPPMAN taking no part.
Order affirmed in a memorandum.