The People, Respondent,v.Chadon Morris, Appellant.BriefN.Y.September 4, 2013To be argued by BARRY STENDIG (20 Minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - CHADON MORRIS, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY BARRY STENDIG Attorneys for Defendant-Appellant 2 Rector Street, 10th Floor New York, N.Y. 10006 (212) 693-0085 September 17, 2012 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . i PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . 5 Introduction . . . . . . . . . . . . . . . . . . . . . . . 5 Over Defense Counsel’s Objection, The Court Permits the People to Introduce a 911 Call Concerning a Gunpoint Robbery and Police Testimony that Appellant Fit the Caller’s Description of the Robber . . . . . . . . . . . . 6 The People’s Case at Trial . . . . . . . . . . . . . . . . 8 The Defense Case . . . . . . . . . . . . . . . . . . . . 10 Jury Charge and Verdict . . . . . . . . . . . . . . . . 11 The Appellate Division’s Decision . . . . . . . . . . . 12 ARGUMENT APPELLANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL WHEN THE COURT ADMITTED, OVER OBJECTION, A 911 CALL REPORTING AN UNCHARGED GUNPOINT ROBBERY COMMITTED BY A MAN WHOSE DESCRIPTION, ACCORDING TO POLICE TESTIMONY, FIT APPELLANT EVEN THOUGH APPELLANT ADMITTED THAT HE POSSESSED THE GUN CHARGED IN THE INDICTMENT AND THE DEFENSE MADE IT CLEAR IT WOULD NOT CHALLENGE THE PROPRIETY OF THE POLICE CONDUCT. U.S. CONST. AMEND. XIV; N.Y. CONST. ART. 1, §6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 24 TABLE OF AUTHORITIES CASES People v. Allweiss, 48 N.Y.2d 40 (1979) . . . . . . . . . . . 14 People v. Alvino, 71 N.Y.2d 242 (1987) . . . . . . . . . . . 14 People v. Arafet, 13 N.Y.3d 460 (2009) . . . . . . . 14, 21, 22 People v. Calabria, 94 N.Y.2d 519 (2000) . . . . . . . . . . 21 People v. Cass, 18 N.Y.3d 553 (2012) . . . . . . . . . . 14, 20 People v. Cook, 42 N.Y.2d 204 (1977) . . . . . . . . . . 15, 18 People v. Crandall, 67 N.Y.2d 111 (1986) . . . . . . . . 15, 17 People v. Crimmins, 36 N.Y.2d 230 (1975) . . . . . . . . . . 21 People v. Gines, 36 N.Y.2d 932 (1975) . . . . . . . . . . . . 15 People v. Gray, 86 N.Y.2d 10 (1995) . . . . . . . . . . . . . 22 People v. Green, 35 N.Y.2d 437 (1974) . . . . . . . . . . . . 15 People v. Hudy, 73 N.Y.2d 40 (1988) . . . . . . . . . . . 14, 20 People v. Lewis, 69 N.Y.2d 321 (1987) . . . . . . . . . . . . 14 People v. Maier, 77 A.D.3d 681 (2nd Dept. 2010) . . . . . . . 17 People v. Mateo, 2 N.Y.3d 383 (2004) . . . . . . . . . . . . 18 People v. Molinuex, 168 N.Y. 264 (1901) . . . . . . . . . . . 15 People v. Montanez, 41 N.Y.2d 53 (1976) . . . . . . . . . . . 15 People v. Pittman, 49 A.D.3d 1166 (4th Dept. 2008) . . . . . 18 People v. Prescott, 66 N.Y.2d 216 (1985) . . . . . . . . . . 22 People v. Resek, 3 N.Y.3d 385 (2004) . . 15, 16, 17, 18, 19, 20 People v. Santarelli, 49 N.Y.2d 241 (1980) . . . . . . . 14, 20 People v. Stanard, 32 N.Y.2d 143 (1973) . . . . . . . . . 15, 21 i TABLE OF AUTHORITIES (con’d) People v. Taylor, 97 A.D.3d 1139 (4th Dept. 2012) . . . . . 17 People v. Till, 87 N.Y.2d 835 (1995) . . . . . . . . . . . . 15 People v. Tosca, 98 N.Y.2d 660 (2002) . . . . . . . . . . . . 15 People v. Ventimiglia, 52 N.Y.2d 350 (1981) . . . . . . . 14, 15 People v. Wlasiuk, 32 A.D.3d 674 (3rd Dept. 2006) . . . . 21, 22 CONSTITUTIONAL PROVISIONS United States Constitution, Amendment XIV . . . . . . . . . . 14 STATUTES New York Criminal Procedure Law §470.05[2] . . . . . . . . . 22 APPENDIX Appellate Division Decision . . . . . . . . . . . . . . . . A. 1 Certificate Granting Leave to Appeal . . . . . . . . . . . A. 3 People’s Memorandum of Law . . . . . . . . . . . . . . . . A .4 911 Call Transcript . . . . . . . . . . . . . . . . . . . . A. 8 Trial Excerpts . . . . . . . . . . . . . . . . . . . . . . A. 12 ii COURT OF APPEALS STATE OF NEW YORK ----------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- CHADON MORRIS, Defendant-Appellant. ----------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, appellant Chadon Morris appeals from a November 29, 2011, order of the Appellate Division, Second Department. That order affirmed a June 24, 2009, judgment of the Supreme Court, Queens County, convicting appellant, after a jury trial, of second-degree criminal possession of a weapon and sentencing him to a five-year determinate prison term and five years of post-release supervision. On August 28, 2012, this Court granted Mr. Morris leave to appeal as a poor person and assigned Lynn W. L. Fahey as appellate counsel. No stay has been sought. Appellant is presently incarcerated pursuant to the judgment. He had no codefendants in the trial court. This Court has jurisdiction pursuant to Criminal Procedure Law § 450.90(1) to entertain this appeal and review the issue raised, since defense counsel objected to the evidence of an uncharged crime (A. 29-30, 33-34, 37-38), and the trial court expressly ruled on the admissibility of this evidence (A. 34-36, 40, 42, 45).1 QUESTION PRESENTED Whether appellant was deprived of his right to a fair trial when the court admitted, over objection, a 911 call reporting an uncharged gunpoint robbery committed by a man whose description, according to police testimony, fit appellant even though appellant admitted that he possessed the gun charged in the indictment and the defense made it clear it would not challenge the propriety of the police conduct. SUMMARY OF ARGUMENT Evidence of a defendant's prior criminal or immoral conduct is inadmissible if it cannot logically be linked to some specific material issue in the case. People v. Cass, 18 N.Y.3d 553, 559 (2012); People v. Hudy, 73 N.Y.2d 40 (1988). Despite the general prohibition against uncharged crime evidence, People v. Molineux, 168 N.Y. 264 (1901), the People, under limited circumstances, may introduce evidence of uncharged crimes as “background” information or to “complete the narrative” concerning the circumstances of the defendant’s arrest. People v. Rezak, 3 N.Y.3d 385, 388-389 (2004); People v. Tosca, 98 N.Y.2d 660, 661 (2002); People v. Till, 87 N.Y.2d 835, 837 (1995). Background evidence about an uncharged crime, however, is not automatically admissible; when the defense does not challenge the propriety of the police action, the evidence 1 Numbers in parentheses preceded by “A” refer to pages of Appellant’s Appendix. -2- should be precluded because then the circumstances of the defendant’s arrest can be “easily dealt with by less prejudicial means.” People v. Rezek, supra, 3 N.Y.3d at 390; see People v. Crandall, 67 N.Y.2d 111, 117 (1986). In that situation, instead of admitting the uncharged crime evidence, the court should simply instruct the jury that the arrest was lawful and that they are not to speculate as to its reasons. People v. Rezek, supra, 3 N.Y.3d at 390. Here, to explain why the police stopped appellant, the People sought to introduce a 911 call reporting a gunpoint robbery and police testimony that appellant fit the caller’s description of the robber. Defense counsel objected and told the court that the defense would not challenge the propriety of the stop, and that appellant would present a temporary innocent possession defense to the second-degree weapon possession charges. Counsel requested that the police testify only that they stopped appellant, and the court instruct the jury that it was not to consider the circumstances of the stop because the issue had already been resolved. Nevertheless, the court, believing that the propriety of the police stop of a defendant “is always on trial,” admitted the uncharged gunpoint robbery evidence and charged the jury that appellant was not on trial for robbery, and the evidence was admitted only to explain the police conduct. Appellant then -3- testified that he possessed the gun the police recovered and was going to report it to the police. Defense counsel did not argue to the jury that the police acted improperly when they stopped appellant. The trial court’s ruling that the uncharged gunpoint robbery evidence was admissible because the propriety of police stops is always a trial issue ignores this Court’s admonition that Molineux background evidence is not automatically admissible. People v. Rezek, supra, 3 N.Y.3d at 390. The propriety of the police conduct was not an issue at trial because appellant admitted he possessed the gun the police recovered, and the defense agreed that it would not challenge the propriety of the police stop of appellant. People v. Rezek, supra, 3 N.Y.3d at 390. Thus, the uncharged gunpoint robbery evidence had no probative value on the only issue for which it was admitted - the propriety of the police conduct. As it was not logically linked to some specific material issue in the case, it should not have been admitted. People v. Cass, supra, 18 N.Y.3d at 559; People v. Hudy, supra, 73 N.Y.2d at 54; see People v. Rezek, supra, 3 N.Y.3d at 390. Absent probative value, the uncharged gunpoint robbery evidence proved only appellant’s criminal propensity, People v. Hudy, supra, 73 N.Y.2d at 55, evidence too prejudicial to be ameliorated by the trial court’s limiting charge. People v. Cass, supra, 18 N.Y.3d at 559. -4- STATEMENT OF FACTS Introduction Appellant was indicted for two counts of second-degree criminal possession of a weapon and resisting arrest after the police recovered a small pistol from him in Queens County in May, 2007. At trial, the People sought to introduce a 911 call about a gunpoint robbery that had occurred moments before appellant was stopped, for which appellant had not been indicted, and police testimony that appellant matched the 911 caller’s description of the robber. Defense counsel objected that the evidence would be too prejudicial to appellant’s defense of temporary innocent possession. Counsel proposed instead that the police testify that they responded to a radio run, and the court instruct the jury that it was not to consider the circumstances of the stop because the issue had already been resolved. Counsel assured the court that the defense would not suggest to the jury that the police improperly stopped appellant, and that appellant would admit that he possessed the gun. The court nevertheless admitted the 911 call and the officers’ testimony as background evidence to explain the actions of the police. Appellant testified that he found the gun shortly before the police stopped him, and that he planned to call the precinct from home to report his discovery. The jury acquitted him of resisting -5- arrest and the weapon count charging possession with the intent to use the gun unlawfully, but it convicted him of the count charging possession not in his home or place of business. Over Defense Counsel’s Objection, The Court Permits the People to Introduce a 911 Call Concerning a Gunpoint Robbery and Police Testimony that Appellant Fit the Caller’s Description of the Robber Prior to trial, the People moved, orally and in writing, to introduce a 911 recording to explain why the arresting officer stopped appellant (A. 4-8, 23-25). The 911 caller reported that three black men, one wearing a white t-shirt with red sleeves, dark pants and a white band-aid on his chin, had stolen his necklace at gunpoint at Beach 21st Street and Elk Drive in Far Rockaway, Queens (A. 26). The men then walked down Beach 20th Street toward Seagirt Boulevard by a CVS store (A. 26). The People would also introduce police testimony that they stopped appellant a few minutes later because he matched the description of the robber and was with two other black men outside the CVS and recovered a gun from him (A. 26-27). The People revealed that the 911 caller had identified appellant and the gun in a show-up after appellant’s arrest, but he never responded to prosecution telephone messages or subpoenas left at his address, and the police could not find him there. Appellant was never charged with the robbery (A. 23-25). Defense counsel objected to the admission of the 911 call. Informing the court that appellant was not going to deny that he possessed the gun the police recovered, counsel argued that the -6- caller’s robbery allegations were prejudicial to appellant’s defense of temporary innocent possession, and that it was “too much to ask the jury” not to consider the robbery report as evidence that he committed the robbery (A. 30, 33, 37-38). Counsel proposed instead that the arresting officer testify only that he stopped appellant pursuant to a radio run, and the court instruct the jury that it was not to consider the circumstances of the stop because the issue had already been resolved (A. 29-30, 34). Counsel assured the court that the defense would not suggest to the jury that the stop was improper (A. 38). Although acknowledging that the robbery allegation “went nowhere in terms of prosecution,” the court admitted the 911 call “as background information . . . to explain the police actions” (A. 40, 45). The court surmised that, even if it instructed the jury that the stop was a matter of law resolved by the court and not for the jury’s consideration, “in the real world” “police conduct in stopping defendants is always on trial,” and it is “very, very dangerous to have the jury speculate as to why a police officer did or did not stop a person” (A. 34-36). According to the court, if the uncharged gunpoint robbery evidence was not admitted, the jury would engage in “rampant speculation that the defendant . . . was just singled out as a young Black male . . . harassed by the police for no good reason” (A. 42). -7- The People’s Case at Trial While on patrol at 12:35 a.m. on May 25, 2007, Police Officers Edward Moore and Glenn Ziminski received a radio run of a gunpoint robbery at Beach 20th Street between Plainview Avenue and Seagirt Boulevard in Far Rockaway, Queens (Moore: A. 130, 140-142; Ziminski: A. 345). The radio run reported a description of three black men between 20 and 30 years old, one of whom was wearing boots, a white t-shirt with red sleeves, either blue jeans or sweat pants, glasses, and a large white band-aid on his chin (Moore: A. 211-214, 220; Ziminski: A. 347-349, 374). The radio run was based on a 911 call reporting that a black man, wearing dark pants and a white shirt with red sleeves, and who had a band-aid on his chin, had taken the caller’s necklace while putting a gun to his face.2 The court instructed the jury that the 911 caller’s statements are not being admitted . . . for the truth of what that person is saying to the 911 dispatcher. Indeed, if you hear any further testimony at this trial relative to those statements made by that caller, that evidence is not being admitted for the truth of what the caller is saying to the 911 dispatcher. . . . [T]he evidence . . . admitted now and any further evidence related to this issue 2The People played the 911 call for the jury, provided it with a transcript of the call (A. 8-11), and introduced into evidence a photo of appellant depicting the clothing he was wearing when he was arrested (A. 131, 133, 189-190, 196-198; Peo. Exhibits 1 & 3). Appellate counsel obtained a copy of the 911 recording from the District Attorney’s office. -8- is admitted . . . . to explain the police actions, to explain what the police did . . . after getting those transmissions . . . . [T]he defendant is . . . . not on trial for robbery with a gun . . . (A. 133-134). The court never told the jury that appellant had not been indicted for the robbery.3 About two minutes later, Moore and Ziminski saw three black men, between 20 and 30 years old, walking together on Beach Street between Plainview and Seagirt, the only people at that location (Moore: A. 144-145, 215; Ziminski: A. 346-349, 374). One of the men, appellant, had a large white band-aid on his chin and was wearing a “soap whitish [shirt] gray from dirt” that had red sleeves, and black sweat pants (Moore: A. 148, 262). Moore claimed that the men were walking away from 22-15 Collier Avenue, appellant’s address (Moore: A. 165). The officers ordered them to stop and appellant, who was 3After the People’s opening statement, the court told the jury that the 911 call was “being admitted . . . to explain the police actions that took place in this case . . . not . . . for the truth of what is contained in that 911 call,” and that “defendant is not charged . . . with . . . a gunpoint robbery in this case” (A. 104- 105). During Officer Ziminski’s testimony, the court charged that his testimony was “not being offered for the truth that a robbery in fact took place but just to explain his actions in response to getting a radio run as to an alleged robbery” (A. 346). During the People’s summation, the court instructed that the 911 call “was admitted . . . to explain the police actions” and not “for the truth that a robbery occurred or that defendant was in fact the one who did the robbery” (A. 582-584). -9- holding a bottle of beer, to approach (Moore: A. 147; Ziminski: A. 350). When appellant complied, Ziminski grabbed his arm and held him against the patrol car, and Moore recovered a loaded, operable small .22 caliber black Beretta pistol from his sweat pants (Moore: A. 148-150, 153-157, 168, 189, 232, 236-237; Ziminski: A. 352-357, 373; Detective James Clont: A. 318, 323). After a struggle, the officers handcuffed appellant (Moore: A. 163; Ziminski: A. 360- 363). The officers did not recover a chain from any of the men - the other two men were not arrested - nor did they retrieve a band- aid, which the officers claimed fell off appellant’s chin during the struggle (Moore: A. 163, 233-237, 240; Ziminski A. 365). The Defense Case Twenty-seven year-old Chadon Morris worked for an inventory auditing company (A. 442). The day before his arrest, appellant and his friends watched a playoff game on television and drank beer at his house (A. 444, 450-451, 471-478). About 12:30 a.m., after his friends had left, appellant, who had been convicted of disorderly conduct for smoking marijuana in public and unauthorized use of a vehicle, went to buy cigarettes at a nearby bodega (A. 444, 450-451, 472-477). He had about $160.00 or $170.00; he did not have a band-aid or an injury on his chin (A. 446, 448). As he walked through the CVS parking lot to the bodega, appellant noticed what looked like a toy gun on the ground near dumpsters on Plainview Avenue (A. 444-445, 456, 492-493, 505-506). -10- He picked up the gun and realized, from its weight, that it was not a toy (A. 507). Appellant intended to notify the police about the gun but his cell phone battery was dead, so he decided to call the police from home rather than enter the nearby precinct unannounced with a weapon (A. 452, 481, 483). Appellant, who had been convicted for drinking beer in public, bought cigarettes and a beer at the bodega, which was less than a minute’s walk away, and was heading home when the police stopped him (A. 445-446, 451-452, 473-477, 481, 484-485). He complied with their order to put his hands on the police car and tried to tell them that he had found the gun (A. 446-447, 487). One officer, however, pushed him down and grabbed his waist, causing the gun to fall to the ground (A. 447). The police told appellant that he was “going down for a robbery” (A. 447). When he turned to face them, surprised by the accusation, the offices hit him (A. 447). Appellant was taken to the hospital for facial injuries, received stitches on his chin, and was treated for shoulder and hip pain (A. 448, 469-470). He never intended to keep the gun, and had it for less than two minutes before the police arrived (A. 486, 503). Jury Charge and Verdict Instructed on the defense of temporary innocent possession (632-633), the jury acquitted appellant of resisting arrest and the weapon possession count charging him with intent to use it -11- unlawfully against another, but convicted him of the second-degree weapon count charging possession outside his home or place of business (A. 687-689). The Appellate Division’s Decision On appeal to the Appellate Division, Second Department, appellant argued that the trial court denied him a fair trial by improperly admitting the police testimony and the 911 call concerning the uncharged gunpoint robbery because the defense had not challenged the propriety of the police conduct, and appellant admitted at trial that he possessed the gun. The People contended that the uncharged robbery evidence “merely completed the narrative” of the police conduct, and that, in any event, the uncharged crime evidence was harmless. The Appellate Division affirmed the judgment, stating: The challenged evidence was properly admitted to “provide background information as to how and why the police pursued and confronted [the] defendant” (People v. Tosca, 98 N.Y.2d 660, 661; see People v. Wilson, 82 A.D.3d 797, 799; People v. Givhan, 78 A.D.3d 730, 731; People v. Stevenson, 67 A.D.3d 605; People v. Jenkins, 49 A.D.3d 780), and the challenged evidence was more probative than prejudicial (cf. People v. Resek, 3 N.Y.3d 385, 389). Moreover, the trial court nullified any potential prejudice by properly instructing the jury several times as to the limited purpose of this evidence (see People v. Tosca, 98 N.Y.2d at 661; People v. Wilson, 82 A.D.3d at 799; People v. Givhan, 78 A.D.3d at 731). People v. Morris, 83 A.D.3d 1112 (2nd Dept. 2011) (A 2). On June 28, 2012, Hon. Robert S. Smith granted appellant leave to appeal (A. 1-2). -12- ARGUMENT APPELLANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL WHEN THE COURT ADMITTED, OVER OBJECTION, A 911 CALL REPORTING AN UNCHARGED GUNPOINT ROBBERY COMMITTED BY A MAN WHOSE DESCRIPTION, ACCORDING TO POLICE TESTIMONY, FIT APPELLANT EVEN THOUGH APPELLANT ADMITTED THAT HE POSSESSED THE GUN CHARGED IN THE INDICTMENT AND THE DEFENSE MADE IT CLEAR IT WOULD NOT CHALLENGE THE PROPRIETY OF THE POLICE CONDUCT. U.S. CONST. AMEND. XIV; N.Y. CONST. ART. 1, §6. Revealing that appellant would admit that he possessed a gun when the police stopped him and would not challenge the propriety of the stop, defense counsel objected when the People sought to introduce a 911 call and police testimony reporting that appellant matched the description of a man who had purportedly committed a gunpoint robbery minutes earlier. Counsel proposed that, instead of permitting the introduction of the uncharged gunpoint robbery, the police testify only that they stopped appellant pursuant to a radio run, and the court instruct the jury not to consider the circumstances of the stop because the issue had already been resolved. The court, however, responded that “police conduct in stopping defendants is always on trial” and admitted the 911 call and the police testimony that appellant fit the caller’s description of the robber. The court instructed the jury that appellant was not on trial for robbery and that the uncharged crime evidence was admitted, not for its truth, but only to explain the police -13- conduct. Since the uncharged gunpoint robbery evidence had no probative value to any issue at trial, and its prejudice to appellant’s defense of temporary innocent possession could not be ameliorated by the court’s limiting charge, appellant was deprived of his due process right to a fair trial. U.S. Const. Amend. XIV; N.Y. Const. Art. 1, §6. Evidence of a defendant's uncharged criminal conduct is inadmissible if it cannot logically be linked to some specific material issue in the case. People v. Cass, 18 N.Y.3d 553, 559 (2012); People v. Hudy, 73 N.Y.2d 40 (1988); People v. Lewis, 69 N.Y.2d 321, 325 (1987); People v. Ventimiglia, 52 N.Y.2d 350, 359 (1981); People v. Santarelli, 49 N.Y.2d 241 (1980); People v. Allweiss, 48 N.Y.2d 40, 46–47 (1979). This prohibition is meant to eliminate the risk that a jury, not fully convinced of the defendant's guilt of the crime charged, may nevertheless convict him because his conduct generally merits punishment. People v. Hudy, supra, 73 N.Y.2d at 55; People v. Allweiss, supra, 48 N.Y.2d at 46. When relevant and probative of a material issue such as motive, intent, knowledge, identity, or common scheme or plan, evidence of uncharged criminal conduct may be admitted if its probative value outweighs its potential for prejudice. People v. Arafet, 13 N.Y.3d 460, 465 (2009); People v. Alvino, 71 N.Y.2d 242 (1987); People v. Lewis, 69 N.Y.2d 321, 325 (1987); People v. -14- Ventimiglia, 52 N.Y.2d 350, 359 (1981) People v. Molinuex, 168 N.Y. 264 (1901). Evidence of uncharged crimes may also be admissible, when coupled with proper limiting instructions, to “complete the narrative” or as “background information” “to explain how and why the police pursued and confronted the defendant.” People v. Tosca, 98 N.Y.2d 660, 661 (2002); People v. Till, 87 N.Y.2d 835, 837 (1995); see also People v. Cook, 42 N.Y.2d 204, 208 (1977); People v. Montanez, 41 N.Y.2d 53, 58 (1976); People v. Gines, 36 N.Y.2d 932 (1975); People v. Green, 35 N.Y.2d 437, 441 (1974); People v. Stanard, 32 N.Y.2d 143, 147 (1973). This Court has cautioned, however, that these decisions should not be interpreted as automatically allowing the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information. On the contrary, under our Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions. People v. Resek, 3 N.Y.3d 385, 390 (2004)(emphasis added). If the defense does not challenge the propriety of the police action, however, “background” evidence about an uncharged crime is not admissible to establish its propriety, even when coupled with a limiting instruction, because the circumstances of the defendant’s arrest can be “easily dealt with by less prejudicial means.” People v. Rezek, supra, at 390; see People v. Crandall, 67 -15- N.Y.2d 111, 117 (1986) (evidence of a prior drug transaction was not necessary to comprehend defendant's statement concerning the charged sale and could have been redacted “without distortion of its meaning”). When the propriety of the police conduct is uncontested, the court should simply instruct the jury that the arrest was lawful and that they are not to speculate as to its reasons. People v. Rezek, supra, 3 N.Y.3d at 390. Here, the evidence that a man who fit appellant’s description had committed a gunpoint robbery was not probative of the sole issue on which the court allowed the jury to consider it - why the police confronted appellant. Once defense counsel revealed that appellant admitted possessing the gun the police recovered, and that the defense would not challenge the propriety of the police conduct, that issue was no longer in the case. Without either relevance or probative value, the uncharged robbery evidence served only the prohibited purpose of suggesting that appellant had a propensity to commit crimes. This case is similar to People v. Resek, supra. There, the trial court admitted evidence that the police were investigating a stolen car report to explain “the action of the officers” before they arrested the defendant for drug possession. Id. at 387. Rezek, however, conceded he possessed the drugs he was charged with intending to sell. Id. at 390. This Court explained that, by virtue of this concession, Rezek had not “placed the propriety of -16- the police action in issue,” and ruled that the trial court should not have admitted evidence of the uncharged stolen car. Id. at 389-390. Here, appellant admitted he possessed the gun recovered by the police, and defense counsel made it clear that he would not challenge the propriety of the police stop of appellant. As in Rezek, those concessions meant that the correctness of the police conduct was not “placed in issue.” Thus, the uncharged gunpoint robbery evidence was not logically linked to a specific material issue at trial and had no probative value to explain why the police stopped appellant. People v. Crandall, supra, 67 N.Y.2d at 117 (payment for a prior drug transaction was not necessary to comprehend defendant's statement with respect to the charged sale and the prejudicial word “another” in the conversation during charged sale could have been redacted “without distortion of its meaning”); People v. Taylor, 97 A.D.3d 1139 (4th Dept. 2012) (defendant’s possession of an inoperable gun, which was not used in the charged crime, could not “logically be linked to [any] specific material issue in the case”); People v. Maier, 77 A.D.3d 681 (2nd Dept. 2010) (defendant’s possession of a “crack pipe” and marijuana, and a marijuana cigarette and three bags of marijuana found in his car was not admissible to explain the police conduct because defendant did not place the propriety of their conduct in issue, nor dispute that he possessed the narcotics he was charged -17- with); People v. Pittman, 49 A.D.3d 1166, 1167 (4th Dept. 2008) (defendant’s previous conviction of attempted weapon possession arising from his attempt to shoot a police officer was not probative because the jury could not infer that the prior incident provided the motive underlying the charged crime of attempted first-degree murder); see also People v. Mateo, 2 N.Y.3d 383, 424 (2004) (evidence is relevant if it has any “tendency in reason to prove any material fact” but to be admissible “its probative value must not be substantially outweighed by the potential for prejudice”); People v. Cook, supra, 42 N.Y.2d at 208 (“evidence of uncharged crimes may be introduced only when the testimony is relevant and necessary to the prosecution's case”). And, as in Rezek, appellant’s concessions gave the trial court “less prejudicial means,” id. at 390, to prevent the jury from speculating as to the circumstances surrounding appellant’s arrest. As defense counsel proposed, the court should have had the arresting officers testify only that they stopped appellant pursuant to a radio run, and instructed the jury that it was not to consider the circumstances of the stop because the issue had already been resolved (A. 20, 34). Indeed, counsel’s proffer was precisely the approach this Court delineated in Rezak, supra, at 390 (“it would have sufficed to instruct the jurors that the arrest was lawful and that they were not to speculate as to its reasons”). Limiting the arresting officers’ testimony to the fact that they -18- stopped appellant pursuant to a radio run, coupled with an instruction that the jury should not consider the circumstances of the stop because it was a previously resolved legal issue, would have been sufficient to prevent jury speculation about the officers’ conduct. Id. The trial court’s ruling that the uncharged gunpoint robbery evidence was admissible because the propriety of police stops “is always on trial” ignores this Court’s admonition that Molineux background evidence is not automatically admissible. People v. Rezek, supra, 3 N.Y.3d at 390 (decisions permitting background Molineux evidence “should not be interpreted as automatically allowing the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information”). Furthermore, the trial court’s perception, echoed by the People in the court below (see Peo. App. Div. Br., p. 11), that it is “very, very dangerous to have the jury speculate as to why a police officer . . . stop[ped] a person” because they might engage in “rampant speculation” that the police were guilty of racial profiling (A. 35-36, 40), would justify the automatic admissibility of uncharged crime evidence in every prosecution where a black or Hispanic defendant is charged only with possession of a contraband. That rationale is not only in direct conflict with the Court’s specific admonition in Rezek but also ignores the premise that uncharged crime evidence is -19- inadmissible. Rezek, at 390; see People v. Santarelli, supra, 49 N.Y.2d at 247 (uncharged crime evidence is excluded as a matter of judicial policy, even if it is marginally relevant to the defendant's guilt, because its probative value is outweighed by its potential for prejudice) The evidence of the uncharged gunpoint robbery, as defense counsel argued, was “too much to ask the jury” to ignore (A. 30, 33, 37-38). Contrary to the ruling of the Appellant Division, the prejudice from the improper admission of the uncharged gunpoint robbery evidence was not “nullified” by the trial court's limiting instructions. Shorn of probative value by the defense concessions, the uncharged gunpoint robbery evidence proved only appellant’s criminal propensity. People v. Hudy, supra, 73 N.Y.2d at 55 (uncharged crime evidence has some minimal probative worth to demonstrate the defendant's bad character and general criminal propensity, but it is excluded as a matter of law when it has no additional relevance to a specific issue). The prejudice of the uncharged gunpoint robbery evidence could not be annulled by the trial court’s instruction that appellant was “not on trial for robbery with a gun,” and that the evidence was admitted only to “explain the police actions.” See People v. Cass, supra, 18 N.Y.3d at 559 (“[w]here . . . the evidence proves only criminal propensity and serves no other function in demonstrating defendant's guilt of the crime charged . . . . [n]o degree of care, -20- in assessing its value and possible prejudice and in giving cautionary instructions, can render it otherwise”); see also People v. Calabria, 94 N.Y.2d 519, 523 (2000)(“court’s instructions to a jury to disregard matters improperly brought to their attention cannot ‘always assure elimination of the harm already occasioned’”); People v. Stanard, supra, 32 N.Y.2d at 148 (“[t]ruly prejudicial evidence cannot be erased from a juror’s mind by the court’s instructions”). Permitting the introduction of Molineux “background” even when it has no logical link to a trial issue, provided the trial court accompanies it with a limiting instruction, would essentially eradicate the premise that uncharged crime evidence is inadmissible. See People v. Wlasiuk, 32 A.D.3d 674, 677-678 (3rd Dept. 2006) (trial court’s limiting instructions did not excuse the improper admission of background evidence of defendant’s domestic violence against the deceased that was not material to the People’s homicide case). The improper introduction of the uncharged robbery evidence certainly prejudiced appellant as the jury’s judgment of his temporary innocent possession defense turned on its assessment of his credibility. People v. Crimmins, 36 N.Y.2d 230, 241-242 (1975); People v. Arafet, supra, 13 N.Y.3d at 467. By acquitting appellant of the resisting arrest charge, the jury showed that it evidently believed his account of the arrest. The 911 call and the -21- officers’ testimony that appellant matched the caller’s description of the robber, which constituted the bulk of the People’s proof of the weapon possession charges, however, made it virtually impossible for the jury to credit appellant’s testimony that he had just found the gun and was walking home to report it. See People v. Wlasiuk, supra, 32 A.D.3d at 678 (when inordinate attention is focused on the defendant’s uncharged domestic violence against the victim, ”there exists potential that a jury will afford such evidence undue weight, regardless of the quality of the other proof implicating the accused in the charged crime”). Defense counsel’s objection to the admission of the 911 call and the police testimony concerning it as prejudicial to appellant’s defense of temporary and lawful possession, and the court’s ruling admitting the evidence, preserved this issue for appeal. C.P.L. §470.05 [2]; People v. Gray, 86 N.Y.2d 10, 20-21 (1995) (the “chief purpose” of the preservation requirement “is to bring the claim to the trial court’s attention” so that the error can be cured when that is still possible); People v. Prescott, 66 N.Y.2d 216, 219 n. 1 (1985) (“Preservation concerns whether an issue has been properly brought to the attention of the Trial Judge and opposing attorneys”). Accordingly, appellant’s conviction must be reversed and a new trial ordered. People v. Arafet, supra, 13 N.Y.3d 460, 467-468. -22- CONCLUSION FOR THE REASONS STATED ABOVE, APPELLANT’S CONVICTION OF SECOND-DEGREE CRIMINAL POSSESSION OF A WEAPON SHOULD BE REVERSED AND A NEW TRIAL ORDERED. LYNN W. L. FAHEY Attorney for Defendant-Appellant Chadon Morris Appellate Advocates 2 Rector Street, 10th Floor New York, New York 10006 (212) 693-0085 ___________________________ By: Barry Stendig Of Counsel September 17, 2012 -23-