The People, Respondent,v.Austin Cornelius, Appellant.BriefN.Y.February 6, 2013 TABLE OF CONTENTS Page INTRODUCTION................................................................................................................ 1 THE EVIDENCE AT TRIAL ............................................................................................ 4 POINT I THE TRIAL COURT PROPERLY REJECTED DEFENDANT’S CONFRONTATION CLAUSE CHALLENGE TO TWO OF THE DUANE READE TRESPASS NOTICES . .......................................................................................... 10 A. The Relevant Record ...................................................................................................... 12 B. Discussion......................................................................................................................... 17 1. Preservation ........................................................................................................... 17 2. Defendant’s Confrontation Clause Challenge to the Admission of the Top Portions of the 2004 Trespass Notices Lacks Merit............................................. 19 3. Defendant Opened the Door to the Admission of the Bottom Portions of the 2004 Trespass Notices ....................................................................................... 32 C. Any Error in the Admission of the Trespass Notices Was Harmless ...................... 38 POINT II THE TRIAL COURT’S MOLINEUX AND SANDOVAL RULINGS WERE PROPER EXERCISES OF DISCRETION ...................... 42 A. The Trial Court’s Molineux Ruling was an Appropriate Exercise of Discretion .... 42 1. The Relevant Record ............................................................................................ 42 2. Discussion .............................................................................................................. 46 B. The Trial Court’s Sandoval Ruling was an Appropriate Exercise of Discretion .... 52 1. The Relevant Record ............................................................................................ 52 2. Discussion .............................................................................................................. 55 -ii- C. Any Error in the Trial Court’s Molineux and Sandoval Rulings was Harmless ...... 60 CONCLUSION ................................................................................................................... 62 -iii- TABLE OF AUTHORITIES FEDERAL CASES Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) ......................................................... 27 Cox v. Bradt, 2012 WL 2282508 (S.D.N.Y. 2012) ..................................................... 20, 30 Crawford v. Washington, 541 U.S. 36 (2004) ....................................................... 19, 23-25 Davis v. Washington, 547 U.S. 813 (2006) ........................................................................ 24 Liner v. Artus, 2008 WL 5114485 (S.D.N.Y. 2008) ............................................. 16, 20, 30 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ................................................... 26 Michigan v. Bryant, 131 S.Ct. 1143 (2011) ................................................................... 24-25 Miller v. Stovall, 573 F.Supp.2d 964 (E.D.Mich. 2008) ................................................... 21 United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir. 2005) ................................ 26 United States v. Bellomo, 176 F.3d 580 (2d Cir. 1999) ................................................... 23 United States v. Cantellano, 430 F.3d 1142 (11th Cir. 2005) .......................................... 26 United States v. Feliz, 467 F.3d 227 (2d Cir. 2006) .......................................................... 26 United States v. Garcia, 452 F.3d 36 (1st Cir. 2006) ........................................................ 26 United States v. Hodge, 295 Fed.Appx. 597 (4th Cir. 2008) .......................................... 24 United States v. Lopez-Moreno, 420 F.3d 420 (5th Cir. 2005) ...................................... 26 United States v. Moran, 759 F.2d 777 (9th Cir. 1985) ..................................................... 19 United States v. Phoeun Lang, 672 F.3d 17 (1st Cir. 2012) ............................................ 26 United States v. Tolliver, 454 F.3d 660 (7th Cir. 2006) ................................................... 19 United States v. Torres-Villalobos, 477 F.3d 978 (8th Cir. 2007) .................................. 26 Williams v. Illinois, 132 S.Ct. 2221 (June 18, 2012) ................................................... 25, 40 -iv- STATE CASES In re Estate of Brandon, 55 N.Y.2d 206 (1982) ............................................................... 51 People v. Almonor, 93 N.Y.2d 571 (1999) ........................................................................ 35 People v. Alvino, 71 N.Y.2d 233 (1987) ...................................................................... 48, 51 People v. Bayne, 82 N.Y.2d 673 (1993) ............................................................................. 48 People v. Blakeney, 88 N.Y.2d 1011 (1996) ...................................................................... 34 People v. Brown, 13 N.Y.3d 332 (2009) ...................................................................... 26, 31 People v. Caban, 5 N.Y.3d 143 ........................................................................................... 19 People v. Contes, 60 N.Y.2d 620 (1983) ........................................................................... 60 People v. Cornelius, 89 A.D.3d 595 (1st Dept. 2011) .......................... 3, 16, 45-46, 55, 59 People v. Cox, 63 A.D.3d 626 (1st Dept. 2009) ......................................................... 30, 51 People v. Cratsley, 86 N.Y.2d 81 (1995) ....................................................................... 27-28 People v. Davis, 58 N.Y.2d 1102 (1983) ..................................................................... 50, 60 People v. Dorm, 12 N.Y.3d 16 (2009) ............................................................................... 49 People v. Douglas, 4 N.Y.3d 777 (2005) ..................................................................... 38, 41 People v. Duffy, 36 N.Y.2d 258 (1975) ............................................................................. 55 People v. Evans, 59 A.D.3d 1127 (4th Dept. 2009) ......................................................... 28 People v. Evans, 94 N.Y.2d 499 (2000) ............................................................................. 57 People v. Everson, 100 N.Y.2d 609 (2003) ....................................................................... 18 People v. Freycinet, 11 N.Y.3d 38 (2008) ......................................................................... 26 People v. Gamble, 18 N.Y.3d 386 (2012) .......................................................................... 46 People v. Gee, 56 A.D.3d 1205 (4th Dept. 2008) ............................................................ 58 People v. Gillyard, 13 N.Y.3d 351 (2009).......................................................................... 60 -v- People v. Gines, 36 N.Y.2d 932 ......................................................................................... 47 People v. Grant, 7 N.Y.3d 421 (2006) ............................................................................... 61 People v. Guidice, 83 N.Y.2d 630 (1994) .......................................................................... 28 People v. Hall, 18 N.Y.3d 122 (2011) ................................................................................ 34 People v. Hayes, 97 N.Y.2d 203 (2002) ....................................................................... 55, 57 People v. Jameson, 66 A.D.3d 407 (1st Dept. 2009) ....................................................... 47 People v. Kello, 96 N.Y.2d 740 (2001) .............................................................................. 33 People v. Liner, 33 A.D.3d 479 (1st Dept. 2006) ....................................................... 29, 31 People v. Liner, 9 N.Y.3d 856 (2007) ......................................................... 14, 17-18, 32-33 People v. Marrin, 205 N.Y. 275 (1912) .............................................................................. 51 People v. Massie, 2 N.Y.3d 179 (2004) ......................................................................... 34-35 People v. Mateo, 2 N.Y.3d 383 (2004) ............................................................................... 34 People v. Matthews, 276 A.D.2d 385 (1st Dept. 2000) ................................................... 48 People v. Mattiace, 77 N.Y.2d 269 (1990) .................................................................... 57-58 People v. McGee, 49 N.Y.2d 48 (1979) ............................................................................. 21 People v. Meekins, 10 N.Y.3d 136 (2008) ........................................................ 26-27, 38-39 People v. Melendez, 55 N.Y.2d 445 (1982) ....................................................................... 34 People v. Molineux, 168 N.Y. 264 (1901) .................................................................. passim People v. Pacer, 6 N.Y.3d 504 (2006) ................................................................................ 27 People v. Prude, 2 A.D.3d 1318 (4th Dept. 2003) ........................................................... 58 People v. Reid, 19 N.Y.3d 382 (2012) .......................................................................... 35, 37 People v. Reynoso, 2 N.Y.3d 820 (2004) ........................................................................... 23 People v. Rojas, 97 N.Y.2d 32 (2001) .......................................................................... 34, 46 -vi- People v. Salko, 47 N.Y.2d 230 (1979) .............................................................................. 23 People v. Sandoval, 34 N.Y.2d 371 (1974) ................................................................. passim People v. Santarelli, 49 N.Y.2d 241 (1980) ........................................................................ 46 People v. Scarola, 71 N.Y.2d 769 (1988) ........................................................................... 46 People v. Schwartzman, 24 N.Y.2d 241 (1969) ................................................................ 57 People v. Small, 12 N.Y.3d 732 (2009) .............................................................................. 50 People v. Smith, 18 N.Y.3d 588 (2012) ........................................................................ 56-57 People v. Smith, 59 N.Y.2d 156 (1983) ............................................................................. 58 People v. Sorge, 301 N.Y. 198 (1950) ................................................................................ 56 People v. Tevaha, 84 N.Y.2d 879 (1994) ........................................................................... 18 People v. Till, 87 N.Y.2d 835 (1995) .................................................................................. 46 People v. Tosca, 98 N.Y.2d 660 (2002) ............................................................................. 46 Reed v. McCord, 160 N.Y. 330 (1899) .............................................................................. 19 State v. Bellerouche, 120 P.3d 971 (Wash. Ct. App. 2005) ............................................. 30 Wolfe v. State, 426 N.E.2d 647 (Ind. 1981) ...................................................................... 22 STATE STATUTES CPLR 4518(a) ........................................................................................................................ 27 Penal Law § 140.00(5) .......................................................................................................... 36 Penal Law § 140.10 .......................................................................................................... 12-13 Penal Law § 140.25(1)(b) ....................................................................................................... 1 OTHER AUTHORITIES Martin, Capra and Rossi, New York Evidence Handbook (2d ed.)................... 19, 23, 27 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- AUSTIN CORNELIUS, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Susan Phillips Read, defendant Austin Cornelius appeals from a November 22, 2011 order of the Appellate Division, First Department, which modified a June 10, 2010 judgment of the Supreme Court, New York County (Ronald A. Zweibel, J.). By that judgment, defendant was convicted, after a jury trial, of Burglary in the Second Degree (Penal Law § 140.25[1][b]) and sentenced, as a second felony offender, to a determinate prison term of ten years, followed by five years of post-release supervision. On appeal, the Appellate Division reduced defendant’s prison sentence, as a matter of discretion in the interest of justice, to a term of seven years. Defendant is currently incarcerated pursuant to that judgment. -2- Defendant’s burglary conviction arises from his illegal entry into a Duane Reade drug store on January 30, 2009, at about 9:30 p.m., with the intent to commit a crime therein. Specifically, defendant entered a Duane Reade store at 979 Third Avenue, in Manhattan, despite the fact that three trespass notices had previously been issued to him revoking his privilege to enter any Duane Reade stores. Once inside the store, defendant removed several disposable cameras from a shelf, placed them in his backpack, and moved towards the front of the store. Duane Reade loss prevention officer Dario Delacruz, who recognized defendant from a previous incident, approached defendant and asked him to open his backpack. When defendant complied, Delacruz found the disposable cameras inside. Nevertheless, defendant refused to be handcuffed and resisted efforts by Delacruz and a Duane Reade store manager to subdue him. During the struggle, defendant repeatedly scratched Delacruz, poked him in the eye, and used the handcuffs to whack Delacruz on the side of his head. As a result, Delacruz experienced bleeding and “a lot” of pain, and he missed several days of work while recovering from his injuries. On October 23, 2009, defendant was arrested. By New York County Indictment Number 5559/09, filed on December 2, 2009, defendant was charged with Burglary in the Second Degree. On May 11 and 12, 2010, following a hearing, the Honorable Ronald A. Zweibel denied defendant’s -3- motions to suppress identification and statement evidence.1 Defendant proceeded to a jury trial before Justice Zweibel on May 18, 2010. On May 25, 2010, defendant was convicted as charged and, on June 10, 2010, he was sentenced as noted above. Defendant appealed, and on November 22, 2011, the Appellate Division, First Department, unanimously affirmed his conviction. Pertinent here, the Appellate Division rejected defendant’s argument that the admission of two of the three trespass notices that were introduced at trial violated his confrontation rights. See People v. Cornelius, 89 A.D.3d 595, 595-96 (1st Dept. 2011). The Appellate Division also rejected defendant’s Molineux and Sandoval claims, which had permitted inquiry into and evidence of a few of defendant’s numerous prior thefts from Duane Reade stores. See id. at 595. On April 16, 2012, the Honorable Susan Phillips Read granted defendant’s application for leave to appeal. On appeal to this Court, defendant renews his claims that the admission of two of the three trespass notices introduced at trial violated his confrontation rights, and that the trial court’s Sandoval and Molineux rulings were improper. 1 Defendant does not challenge the suppression ruling on appeal. -4- THE EVIDENCE AT TRIAL The People’s Case2 At approximately 9:25 p.m., on January 30, 2009, DARIO DELACRUZ was on duty as a loss prevention officer at a Duane Reade store located at 979 Third Avenue, near East 58th Street, in Manhattan (Delacruz: RA 98-101). He was in plain clothes and wearing his Duane Reade employee identification badge (Delacruz: RA 101, 140). As Delacruz was in the security office watching over a video monitor, he observed defendant for about “six [to] eight minutes” in the back of the store transferring “several” Kodak disposable cameras from one shelf to another. Delacruz continued to watch as defendant placed the cameras in his backpack and in a Duane Reade shopping bag (Noriega: RA 73-74, 83, 85; Delacruz: RA 120-21, 133-35, 147, 149-50, 154, 159).3 When defendant headed towards the exit at the front of the store, Delacruz left the security office and approached him (Delacruz: RA 121, 142, 150-52). Delacruz recognized defendant from an incident several months earlier, in July 2008, in which Delacruz had caught defendant stealing 55 boxes of Visine eye drops from a different Duane Reade store (Delacruz: RA 102-03, 121, 141-42, 159). 2 Page citations preceded by “RA” and “DA” refer to the respondent’s appendix and the defendant’s appendix, respectively. 3 Just 25 minutes earlier, at approximately 9:00 p.m., defendant had been released from police custody after he had been caught stealing toothbrushes from a Duane Reade store at 401 East 86th Street. Defendant had been arrested for that crime at approximately 5:00 p.m., and he was taken to the 19th precinct at 151 East 67th Street, where he was issued a Desk Appearance Ticket (Ng: RA 54-55, 57-62). -5- Upon reaching defendant, Delacruz identified himself as a Duane Reade store detective and advised defendant that he had observed him putting disposable cameras in his backpack. Defendant handed over his backpack, which indeed contained “several” disposable cameras. Delacruz informed defendant that he would have to handcuff him and do some “paperwork” (Delacruz: RA 120-22, 134-37, 142, 147, 156, 159). At this point, JAIME NORIEGA, an assistant manager at Duane Reade who had observed defendant walking up and down the store aisles, approached Delacruz and defendant (Noriega: RA 67-68, 72-74, 83, 85). Defendant was “aggressive” toward Delacruz and kept putting his hands on the shelves in order to avoid being handcuffed (Noriega: RA 75-76; Delacruz: RA 122, 135-36, 156). Concerned that defendant might flee, Delacruz repeatedly told defendant to “calm down” and to put his hands behind his back. Defendant, however, began to talk loudly and became more aggressive (Delacruz: RA 123). Based on his previous experience with defendant, Delacruz feared that defendant, who was “much taller” and more muscular than Delacruz, would “attack,” so Delacruz grabbed defendant and tried to pull him down to the floor (Noriega: RA 77; Delacruz: RA 123-24). Noriega tried to help Delacruz handcuff defendant, and they both fell to the floor with defendant (Noriega: RA 77-78; Delacruz: RA 124). During the struggle, defendant stuck his finger in Delacruz’s eye and scratched him “real[ly]” “bad[ly]” (Delacruz: RA 124-25, 136). -6- While they were on the floor, Delacruz managed to put a handcuff on one of defendant’s wrists, and Noriega, in an attempt to prevent defendant from fleeing, pulled defendant’s pants down (Noriega: RA 78-79; Delacruz: RA 125). Still, defendant was able to get up, remove his coat, and run outside the store (Noriega: RA 79-80; Delacruz: RA 125, 137). Noriega and Delacruz ran after defendant, who slowed down and swung at Delacruz with his handcuffed hand, striking Delacruz’s head with the handcuff (Noriega: RA 79-80; Delacruz: RA 125-27). Noriega and Delacruz continued to chase defendant into the 51st Street and Lexington Avenue subway station, where they then lost sight of him. Thereafter, Noriega and Delacruz went to the nearest police station and reported the crime (Noriega: RA 80-81; Delacruz: RA 127-28). A short time later, Delacruz, whose face was bleeding, was placed in an ambulance (Noriega: RA 94; Delacruz: RA 126-27). After the incident, Delacruz continued to experience pain and had to take “a couple of days off” from work to recover from injuries to his back and leg (Delacruz: RA 128). Defendant was arrested on October 23, 2009 (Barna: RA 164-65). Duane Reade had previously issued trespass notices to defendant on three separate occasions: May 20, 2004, August 6, 2004 and July 1, 2008. Each notice stated that defendant was barred from entering any Duane Reade store in the future (Delacruz: RA: 116-20; RA: 265 [People’s Ex. 5A]; RA: 267 [People’s Ex. 6A]; RA: -7- 263-64 [People’s Ex. 4]).4 Defendant had signed the 2004 notices. Delacruz, who had personally issued the July 2008 notice to defendant, had warned defendant that if he ever entered any Duane Reade store again, he could be arrested for trespass (Delacruz: RA 117-20). At trial, Delacruz and Noriega identified defendant as the person who stole disposable cameras and fought with them in the Duane Reade store at 979 Third Avenue on January 30, 2009 (Noriega: RA 74; Delacruz: RA 101). Detective Barna identified defendant as the person he arrested on October 23, 2009 (Barna: RA 166). Defendant’s Case On January 30, 2009, defendant was arrested for petit larceny at a Duane Reade store, although at that time he thought he had been arrested for possession of marihuana (Cornelius: RA 178) He was given a Desk Appearance Ticket and left police custody at around 9:00 p.m. (Cornelius: RA 178-81, 192).5 At approximately 9:25 p.m., defendant went to another Duane Reade store, located at East 58th Street and Third Avenue, because he wanted to purchase a Valentine’s Day gift for his “lady” (Cornelius: RA 168-69, 182-83). In particular, he wanted to purchase a camera 4 Pursuant to Duane Reade’s policy, a trespass notice was issued whenever a customer was caught shoplifting in a Duane Reade store (Noriega: RA 81-82; Delacruz: RA 103-04; see Ng: RA 58-59). 5 Defendant was supposed to appear in court for the petit larceny arrest “a month or two later,” but never did because he was “totally disorganized” and had “lost track of” the date of his scheduled court appearance (Cornelius: RA 179). Defendant eventually pled guilty to petit larceny for the incident (Cornelius: RA 179-80, 192). -8- to take “erotic pictures” of her (Cornelius: RA 183). Carrying a plastic shopping bag in his left hand, defendant entered the store and went to an aisle which had disposable cameras and Valentine’s Day merchandise (Cornelius: RA 172-73). Although defendant had initially intended to purchase one disposable camera and another item, he decided to purchase two or more cameras because they were on sale (Cornelius: RA 172, 184). He moved some of the cameras from one shelf to another because he had a “couple [of] different items” he wanted to purchase and he wanted to put all of them on one shelf (Cornelius: RA 169, 182, 186-87, 196). Defendant, who had “[w]ell over a hundred dollars” on him that evening, had enough money to pay for all of the merchandise, which had a total cost of about $45 to $50 (Cornelius: RA 182). Just as defendant was about to put the “three, maybe four” disposable cameras into his shopping bag, and before he had a chance to pay for the merchandise he intended to buy, he was approached by two men, including a Hispanic man who was approximately 5’ 10’’ or 5’ 11’’ tall (Cornelius: RA 169-72, 174, 196). The two men started “grabbing” and “pulling” on defendant. When defendant asked them what he had done, they responded that they wanted to handcuff him. Defendant was cooperative and insisted that he had done nothing wrong and that they could call the police (Cornelius: RA 175, 192-93). Defendant offered to be searched but refused to be handcuffed. At that point, one of the men “tackled” defendant to the floor (Cornelius: RA 176, 193). Defendant, who was kicked and had his pants pulled down, felt that he was being “assaulted” and needed to defend himself (Cornelius: RA 193- -9- 94). He therefore ran out of the store and into a subway station. Defendant never filed a complaint with Duane Reade, nor did he ever call the police, regarding this incident (Cornelius: RA 194). Defendant had previously been arrested for shoplifting, and he had pled guilty “a couple of times” to trespassing and committing petit larceny and burglary at Duane Reade stores (Cornelius: RA 176-77, 187, 192). Regarding the three Duane Reade trespass notices in evidence, defendant did not think that the signature on the August 6, 2004 notice was his because he had “much neater handwriting” (Cornelius: RA 187). The signature on the May 20, 2004 notice was defendant’s or looked “similar” to it, but defendant did not remember ever having seen that notice (Cornelius: RA 187-88, 194-95). Nor did he recall ever having seen the July 1, 2008 trespass notice (Cornelius: RA 195). While defendant eventually pled guilty to Burglary in the Third Degree in connection with the July 1, 2008 incident, he did not remember admitting at the plea proceeding that he had been in the Duane Reade store unlawfully (Cornelius: RA 191-92, 195). The People’s Rebuttal Officer DARRYL NG testified on rebuttal that when a suspect is arrested, the arresting officer fills out a prisoner “pedigree card” which lists, among other things, how much money was in the arrestee’s possession (Ng: RA 198-99). On January 30, -10- 2009, defendant’s prisoner pedigree card indicated that he had $20 in cash (Ng: RA 201). POINT I THE TRIAL COURT PROPERLY REJECTED DEFENDANT’S CONFRONTATION CLAUSE CHALLENGE TO TWO OF THE DUANE READE TRESPASS NOTICES (Answering Defendant’s Brief: Point I). At trial, to prove that defendant had unlawfully entered the Duane Reade store at 979 Third Avenue on January 30, 2009, the People introduced three “trespass notices” that Duane Reade had previously issued to defendant: on May 20, 2004, August 6, 2004 and July 1, 2008. The top portion of each notice included a statement that defendant understood that his privilege to enter all Duane Reade stores had been revoked. In addition, the bottom portion of each notice included a brief summary of the incident that led Duane Reade to issue it. Dario Delacruz, the Duane Reade employee who issued the July 1, 2008 notice to defendant, testified at trial. On appeal, defendant does not argue that the admission of the 2008 trespass notice violated his confrontation rights. Instead, he contends that the admission of the two 2004 trespass notices violated his Sixth Amendment right of confrontation, because the Duane Reade employees who prepared them did not testify at trial (Defendant’s Brief: 19-20). -11- Defendant’s claim should be rejected. At trial, defendant did not raise a Confrontation Clause challenge to the admission of the bottom portions of the notices, and he raised only a vague Confrontation Clause challenge to the admission of the top portions, which was based on a plainly incorrect reading of a decision of this Court. Thus, defendant has not presented a preserved question of law for this Court to review. Nor are defendant’s appellate claims meritorious. The top portions of the trespass notices, which contained defendant’s own acknowledgements that he could not return to Duane Reade, were admissions that did not implicate the Confrontation Clause. In addition, Duane Reade’s order that defendant stay away from the store was a verbal act—not hearsay—and thus did not fall within the scope of the Confrontation Clause. Further, the trespass notices were prepared in the regular course of Duane Reade’s business and cannot be deemed “testimonial” for that reason too. And, the trial court initially redacted the bottom portion of the 2004 notices, which detailed the circumstances under which they were issued. Those portions were introduced only after defense counsel opened the door during questioning of a prosecution witness.6 6 Defendant’s separate Molineux challenge to the admission of the trespass notices is discussed in Point II, infra. -12- A. The Relevant Record Duane Reade had previously issued trespass notices to defendant on: May 20, 2004, August 6, 2004 and July 1, 2008. The top portion of the May 20, 2004 notice, which was signed by defendant, stated: I, Austin Adriel Cornelius, understand that my privilege to enter all Duane Reade stores is revoked. I was told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State Penal Law and any other appropriate criminal charge. (RA: 265 [People’s Ex. 5A]). The top of the notice also stated defendant’s name, date of birth, and address. The bottom portion described the underlying conduct that led to the issuance of the notice,7 along with the address of the Duane Reade store which issued the notice, as well as the signatures of the person giving the notice and a second witness (RA: 265 [People’s Ex. 5A]). The August 6, 2004 notice, which also was signed by defendant, similarly stated: I, Austin Cornelius, understand that my privilege to enter all Duane Reade stores is revoked. I was told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State penal law and any other appropriate criminal charge. (RA: 267 [People’s Ex. 6A]). On the top of this notice too was defendant’s name, date of birth and address. The bottom portion described the underlying conduct that 7 The bottom portion stated: “Individual was observed removing and conceal[ing] 33 boxes of Visine and attempted to leave [the] store without paying” (RA: 265 [People’s Exhibit 5A]). -13- led to the issuance of the notice,8 along with the address of the Duane Reade store which issued the notice, as well as the signatures of the person giving the notice and a second witness (RA: 267 [People’s Ex. 6A]). The top portion of the 2008 notice, which defendant had refused to sign, stated: I, Cornelius Austin, understand that my privilege to enter all Duane Reade stores is revoked. I was told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to Section 140.10 of the New York State Penal Law and any other appropriate criminal charge. (RA: 263-64 [People’s Ex. 4]). At the top of the notice was defendant’s name and date of birth. The bottom portion of the notice included a brief description of defendant’s conduct in the store,9 along with the address of the Duane Reade which issued the notice, the signature of Dario Delacruz, who gave the notice, and the signature of a second witness (RA: 263-64 [People’s Ex. 4]). Prior to trial, the court ruled that all three notices could be admitted into evidence (RA: 21-22). However, as to the two 2004 trespass notices, the trial court held that the bottom portions, containing the underlying facts of the incidents, would 8 The bottom portion stated: “Austin Cornelius was observed entering the Duane Reade on 485 Lexington Avenue. Austin Cornelius was then observed concealing store merchandise” (RA: 267 [People’s Ex. 6A]). 9 The bottom portion stated: “Mr. Austin was observed removing and concealing 55 visine inside a shopping bag then attempting leaving the store without paying” (RA: 263 [People’s Ex. 4]). -14- be redacted (RA: 21-22, 28, 38-39). With regard to the July 1, 2008 notice, the trial court permitted the People to elicit testimony from Delacruz regarding the notice, and the underlying facts of the incident, since Delacruz had witnessed the incident and had personally issued the notice to defendant (RA: 38-39).10 The following day, still prior to the start of trial, defense counsel objected to the admission of the trespass notices. Specifically, citing this Court’s decision in People v. Liner, 9 N.Y.3d 856 (2007), defense counsel asserted that the admission of three trespass notices would “violate my client’s right to confrontation” (RA: 36-37). The trial court rejected defendant’s argument, pointing out that the Liner decision did not support defendant’s claim (RA: 37). Defendant lodged no further objection, nor did he specify any other basis for his Confrontation Clause objection (RA: 37). Additionally, the trial court again confirmed that the facts underlying the two 2004 incidents (as recounted in the bottom portions) would be redacted from the notices (RA: 38-39). At trial, Dario Delacruz, who had been employed by Duane Reade as a loss prevention officer for five and one-half years (Delacruz: RA 98), testified that trespass notices were made and kept in the ordinary course of Duane Reade’s business, that Duane Reade employees had a business duty to complete trespass notices accurately, 10 On appeal, defendant does not raise a Confrontation Clause challenge to the admission of the July 1, 2008 notice or to Delacruz’s testimony about it. -15- and that the forms must be completed “at the time” the events in question took place (Delacruz: RA 107). Delacruz had experience issuing trespass notices, including personally issuing defendant a trespass notice on July 1, 2008 (Delacruz: RA 117-18; RA 263-64 [People’s Ex. 4]). When the prosecutor moved to admit the trespass notices into evidence, defense counsel conducted a voir dire examination of Delacruz (Delacruz: RA 107- 11). In particular, defense counsel pressed Delacruz on whether he had personal knowledge of the 2004 incidents, asking whether Delacruz had “any familiarity” as to the “accuracy of th[e] information” contained in the trespass notices (Delacruz: RA 110). Counsel also asked whether Delacruz’s “whole knowledge” of the notices was “basically. . .what someone gave you,” to which Delacruz replied “I mean this is— what is described in the paper, that is what happened on that day. What the store detective wrote. I wasn’t there” (Delacruz: RA 110). Counsel continued to press Delacruz on whether he had “personal knowledge” of what happened on the days the notices were issued. Delacruz responded that, “[w]hat the other store detective wrote. That is what I read what happened on that date” (Delacruz: RA 110-11). Following the questioning, defendant raised an unelaborated objection to the admission of the trespass notices, stating simply “I am going to object” (RA: 111). The court admitted the notices over defense counsel’s objection (RA: 111). The prosecutor then argued that defense counsel’s questioning had opened the door to the admission of the bottom portions of the 2004 notices, which had been -16- redacted. Specifically, the prosecutor contended that counsel’s questioning gave the “jury the wrong impression when looking at the redacted [2004] trespass notices,” and that they were going to wonder why those notices were issued “given the fact that [Delacruz] [was] not familiar with the facts” of the 2004 notices (RA: 111). While defense counsel argued generally that the redactions should remain, counsel did not mention the Confrontation Clause or the Sixth Amendment (RA: 111-12). The court agreed with the prosecutor that defense counsel’s questioning had opened the door to the admission of the notices “in unredacted form” (RA: 112; see RA: 265, 267 [People’s Exs. 5A and 6A]). Counsel again was permitted to voir dire Delacruz regarding the trespass notices and asked Delacruz, again, whether he had any “personal knowledge” of the information written on the bottom of the notices (Delacruz: RA 113-16). At the conclusion of his voir dire, defense counsel stated, “Your honor, I would objection [sic]” (RA: 116). The court admitted the unredacted notices over defendant’s objection, noting that they were business records (RA: 116). On appeal, defendant argued that the admission of the two 2004 trespass notices violated his Sixth Amendment right of confrontation. The Appellate Division held that the trespass notices “were properly admitted as business records and did not violate defendant’s right of confrontation,” adding that the notices “were ‘not created in order to memorialize witness testimony,’ but for business purposes.” People v. Cornelius, 89 A.D.3d 595, 595-96 (1st Dept. 2011) (quoting Liner v. Artus, 2008 WL 5114485 at *4 [S.D.N.Y. 2008]). -17- B. Discussion On appeal, defendant does not contend that the Confrontation Clause barred the People from introducing the 2008 trespass notice into evidence. After all, Delacruz prepared the notice and witnessed the incident, and he testified at trial, so he was subject to cross-examination about any facts contained in it. Defendant argues, however, that the admission of the two 2004 notices violated his Sixth Amendment confrontation rights because the Duane Reade employees who prepared the notices did not testify (Defendant’s Brief: 19-20). This claim is unpreserved and meritless. 1. Preservation As an initial matter, defendant’s Confrontation Clause challenges to the admission of the 2004 trespass notices are largely, if not entirely, unpreserved for this Court’s review. During the trial proceedings, defendant referenced his confrontation rights only once: in a one-sentence argument that the trespass notices must be precluded under the reasoning of People v. Liner, 9 N.Y.3d 856 (2007) (RA: 36-37). However, defendant’s reference to Liner was clearly misplaced, since in that case, this Court rejected as unpreserved the defendant’s Confrontation Clause challenge to the admission of Duane Reade trespass notices. See Liner, 9 N.Y.3d at 856-57. Hence, defendant’s reference to Liner at trial made no sense and should not be equated with a serious argument that his confrontation rights had been violated. -18- Significantly, when the trial court pointed out to defense counsel that Liner did not support his claim, defense counsel made no additional arguments (RA: 37). In particular, defendant did not identify any language in the trespass notices that he claimed was “testimonial,” nor did he identify any witnesses whom he believed were required to testify in order for the notices to be admitted (Defendant’s Brief: 23-29). Additionally, defendant did not object on Confrontation Clause grounds when the trial court ruled that defense counsel had opened the door to the admission of the bottom parts of the notices (RA: 112, 116). Because defendant failed to raise the specific Confrontation Clause objections that he presses now, his current claims are not preserved for this Court’s review. See Liner, 9 N.Y.3d at 856 (finding that the defendant’s Confrontation Clause challenge to the admission of trespass notices was unpreserved); People v. Everson, 100 N.Y.2d 609 (2003) (“[a] party’s failure to specify the basis for its general objection renders its argument unpreserved for this Court’s review”); People v. Tevaha, 84 N.Y.2d 879, 880-81 (1994) (finding claim unpreserved where defense counsel “simply made a general objection” and “failed to advise the trial court that the present claimed error was the basis for his objection”). Further, as the courts below found, the Confrontation Clause posed no bar to the admission of the 2004 trespass notices. -19- 2. Defendant’s Confrontation Clause Challenge to the Admission of the Top Portions of the 2004 Trespass Notices Lacks Merit To begin, the top portions of the notices, in which defendant acknowledged that he was barred from returning to any Duane Reade store, did not contain “testimonial” hearsay. As noted, the top portions of the 2004 notices consisted solely of defendant’s own signed statements, in which he acknowledged that his license to enter any Duane Reade store had been revoked and that he had been warned that he could face trespass charges if he returned to any Duane Reade store. Of course, a defendant’s own admissions “are always competent evidence against him, wherever, whenever or to whomsoever made.” Reed v. McCord, 160 N.Y. 330, 341 (1899); see People v. Caban, 5 N.Y.3d 143, 151 n* (2005) (“Plainly, defendant’s own statements could be received in evidence as party admissions”). And the decision in Crawford v. Washington, 541 U.S. 36 (2004), does not alter this longstanding rule. Indeed, “[u]nder any view of the Confrontation Clause, the accused does not have a constitutional right to confront himself.” Martin, Capra and Rossi, New York Evidence Handbook § 8.8.3, at 387 (2d ed. 2010 Cumulative Supp.); see United States v. Tolliver, 454 F.3d 660, 665 (7th Cir. 2006) (holding that the “prohibition annunciated in Crawford” does not apply to admissions by a party-opponent since they are not hearsay); United States v. Moran, 759 F.2d 777, 786 (9th Cir. 1985) (holding that letters and deposit slips signed by the defendant were admissions of a -20- party opponent under Rule 801[d][2][a] and, thus, their introduction at trial did not violate the Confrontation Clause). Hence, the top portions of the 2004 trespass notices fell outside the purview of the Confrontation Clause, because they contained only defendant’s own admissions: defendant declared that he understood that he was no longer permitted to enter any Duane Reade store, and he acknowledged he could be arrested should he do so. To be sure, defendant did not draft the notices. However, he signed the statements, which were written as first-person declarations by defendant himself. Defendant thereby adopted the statements as his own. See Liner v. Cox, 2008 WL 5114485 at *4 (rejecting Confrontation Clause challenge to admission of trespass notices. Defendant “by his signature adopted the text reciting that he had been advised that he was no longer welcome in Duane Reade stores”); Cox v. Bradt, 2012 WL 2282508 at *14 (S.D.N.Y. 2012) (same: trespass notices issued by Duane Reade constituted admissions by the defendant, “who in signing them acknowledged that he ‘underst[oo]d that [his] privilege to enter all Duane Reade stores [wa]s revoked’ and that he could be arrested for trespass if he entered another Duane Reade store”) (internal citations omitted), rep. and recommendation adopted (No. 10 Civ. 9175 [CM][JLC] [S.D.N.Y. July 20, 2012] [Docket No. 25]) (adopting the report and recommendation and rejecting the defendant’s request for a certificate of appealability). -21- In response, defendant contends that he never acknowledged that the signatures on the 2004 trespass notices were his (Defendant’s Brief: 40). But the trial evidence surely allowed the jury to conclude that the signatures belonged to defendant. The notices bore defendant’s correct name and date of birth, and the signatures on the two notices appeared nearly identical (RA: 265, 267 [People’s Exs.: 5A and 6A]; see RA: 228 [asking the jurors to “look at the signatures for yourself and compare them”]). Indeed, when defendant testified at trial, he did not deny signing the notices. Instead, he equivocated, acknowledging that the signature on the May 20, 2004 notice was his or looked “similar” to his own (Cornelius: RA 187-88, 194-95), but opining that he did not think the signature on the August 6, 2004 notice was his because he had “much neater handwriting” (Cornelius: RA 187). As the jury concluded, defendant’s attempt to cast doubt on the authenticity of the signatures was hardly persuasive. In any event, any challenge to the authenticity of the signatures on the trespass notices went only to the weight given the documents, not their admissibility. Simply put, defendant’s attempt to raise questions about the signatures did not render the documents inadmissible, and it certainly did not constitute a Confrontation Clause claim. See People v. McGee, 49 N.Y.2d 48, 60 (1979) (holding that any infirmities concerning the chain of custody or inaudibility of tape recordings admitted at trial “go to the weight of the evidence, not its admissibility”); see also Miller v. Stovall, 573 F.Supp.2d 964, 998 (E.D.Mich. 2008) (argument regarding authenticity of instant message transcripts went to the “weight of the evidence for the -22- jury to resolve,” not “the evidence’s admissibility under the Sixth Amendment”); Wolfe v. State, 426 N.E.2d 647, 655 (Ind. 1981) (any question regarding the authenticity of the defendant’s signature on a letter “went to the weight and credibility of the evidence, not its admissibility”). Defendant next asserts that, in addition to his own admissions, the top portions of the trespass notices contained another out-of-court statement: specifically, defendant’s statement that he was “told” that he could face trespass charges if he returned to Duane Reade. He argues that the admission of this statement about what he was “told” implicated the Confrontation Clause (see Defendant’s Brief: 39). But surely, defendant was a competent witness to relate what he had been told. After all, the People introduced the trespass notices merely to prove that defendant had heard the order to stay away from Duane Reade. The only relevance of the statement was that defendant knew that he had been told not to enter—that is, that the ”stay away” order had been communicated to him. It did not matter whether the statement warning him to stay away was “true” or “false”—it mattered only that the directive had been given. Put another way, the statement by Duane Reade ordering defendant to stay away or else face criminal charges was a command: a directive not to enter, which was a verbal act. Neither the hearsay rule nor the Confrontation Clause bars evidence that an out-of-court declarant issued a command to someone, such as an order to stay away from a particular location. That is because the evidentiary value of a command -23- does not depend on the “truth” of the matter asserted. Instead, as explained, all that matters in a command is that the words themselves were uttered. See United States v. Bellomo, 176 F.3d 580, 586 (2d Cir. 1999) (“[s]tatements offered as evidence of commands or threats or rules. . .are not hearsay”); see also People v. Salko, 47 N.Y.2d 230, 239-40 (1979) (noting that a “statement or utterance which constitutes a verbal part of an act” is “not hearsay if offered not for the truth of their assertions, but, rather, to attach legal effect to the conduct which they accompany”). Simply put, “[o]ut-of-court statements that constitute the granting or denial of permission” are not hearsay. Martin, Capra and Rossi, New York Evidence Handbook § 8.2.1, at 657 (2d ed.). And in Crawford, the Supreme Court made clear that non-hearsay statements do not implicate the Sixth Amendment. See Crawford, 541 U.S. at 60 n.9 (“The [Confrontation] Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”); see also People v. Reynoso, 2 N.Y.3d 820, 821 (2004) (no Confrontation Clause issue if statement is admitted for a purpose other than to prove the truth of the matter asserted). Hence, defendant is wrong to assert that the order to stay away was introduced to prove its “truth”: that is, that defendant would in fact be charged with trespass if he entered Duane Reade again (Defendant’s Brief: 37-38). As discussed above, the statement was introduced to prove only that Duane Reade had communicated the order to defendant to stay away. Its evidentiary value was simply that defendant knew -24- his license to enter any Duane Reade store had been revoked. See United States v. Hodge, 295 Fed.Appx. 597, 601-02 (4th Cir. 2008) (finding that the language of the Cease and Desist Order was “obviously” not testimonial in nature and “the allegations and ordering language are not hearsay because the government did not introduce them for the truth of the matter asserted. . .but rather to establish that [the defendant] was on notice of the allegations and the ordering language set forth” in the Order). Nothing more need be said to demonstrate that the top portions of the trespass notices did not implicate the Confrontation Clause. Still, it bears noting that the top portions of the notices did not implicate the Confrontation Clause for another, independent reason: the notices were business records created primarily for a business purpose, and they were not intended to create “testimony” against defendant. In Crawford, the Supreme Court explained that the Sixth Amendment bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination.” 541 U.S. at 53-54. As a general rule, an out-of-court statement is not “testimonial” unless it was made for the primary purpose of creating evidence to be used at trial. For instance, in Davis v. Washington, 547 U.S. 813 (2006), the Court ruled that statements obtained as the result of police interrogation are testimonial only if the “primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution.” Id. at 822. Similarly, in Michigan v. Bryant, 131 S.Ct. 1143 (2011), the Court explained that the “basic objective of the -25- Confrontation Clause” is to “prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial.” Id. at 1155. In contrast, “[w]here no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id. Applying that rule, the Supreme Court held in Bryant that a shooting victim’s excited statement to the police was non-testimonial, because the police were responding to a volatile, emergency situation. The primary purpose of the police questioning, therefore, was not to develop evidence for trial. See id. at 1163-67. More particularly, in Crawford, the Court declared that business records are generally “by their nature” non-testimonial and do not fall within the purview of the Confrontation Clause. Crawford, 541 U.S. at 56. For that reason, in Williams v. Illinois, 132 S.Ct. 2221 (June 18, 2012), a plurality of the Court concluded that a DNA report, which was prepared by a laboratory in the regular course of business, was not testimonial. The plurality explained that the “primary purpose” of the lab report was not to accuse a suspect of a crime or “to create evidence for use at trial.” Id. at 2243- 44 (plurality opinion).11 11 Justice Thomas concurred on the ground that the DNA report was insufficiently formal to constitute a “testimonial” document. See Williams, 132 S.Ct. at 2255 (Thomas, J., concurring in judgment). -26- Similarly, this Court has held that reports prepared in the ordinary course of business, which were not created primarily for use at trial, are non-testimonial. See People v. Brown, 13 N.Y.3d 332, 339-41 (2009) (DNA forensic analysis report prepared by a private laboratory not testimonial); People v. Freycinet, 11 N.Y.3d 38, 42 (2008) (Non-opinion portions of autopsy report were non-testimonial and properly admitted as a business record, as the report “was very largely a contemporaneous, objective account of observable facts”); People v. Meekins, 10 N.Y.3d 136, 159-60 (2008) (DNA report); see also United States v. Feliz, 467 F.3d 227, 234 (2d Cir. 2006) (Autopsy report was a non-testimonial business record that bore “little resemblance to the civil-law abuses the Confrontation Clause targeted” [internal citation omitted]).12 In contrast, formalized documents prepared by law enforcement specifically for trial have been held testimonial. See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305, 12 Even law enforcement records prepared pursuant to a business duty do not implicate the Confrontation Clause. See, e.g., United States v. Torres-Villalobos, 477 F.3d 978, 983 (8th Cir. 2007) (because warrants of deportation “are produced under circumstances objectively indicating that their primary purpose is to maintain records concerning the movements of aliens and to ensure compliance with orders of deportation, not to prove facts for use in future criminal prosecutions…they are properly characterized as non-testimonial official records that were prepared independent of litigation”); United States v. Garcia, 452 F.3d 36, 42 (1st Cir. 2006) (same); United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir. 2005) (same: “a warrant of deportation is non-testimonial and therefore is not subject to confrontation.”); United States v. Lopez-Moreno, 420 F.3d 420, 437 (5th Cir. 2005) (Immigration and Customs Enforcement records not testimonial); United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir. 2005) (warrant of deportation is non- testimonial and its introduction as a public record does not violate Crawford); see also United States v. Phoeun Lang, 672 F.3d 17, 22-23 (1st Cir. 2012) (finding that the defendant’s immigration form, “like all others similarly generated, was a non-testimonial public record produced as a matter of administrative routine, for the primary purpose of determining [the defendant’s] eligibility for naturalization”). -27- 307-17, 320-26, 329-30 (2009) (formalized, sworn certificate of drug analysis prepared by a state-designated crime lab and created for the express purpose of proving the nature and weight of the controlled substance at trial); Bullcoming v. New Mexico, 131 S.Ct. 2705, 2710-17 (2011) (formalized report certifying the defendant’s blood- alcohol concentration that was plainly created to be used as evidence at trial); People v. Rawlins, 10 N.Y.3d 136, 157-58 (2008) (fingerprint report created by law enforcement that was directly accusatory); People v. Pacer, 6 N.Y.3d 504, 512-13 (2006) (formalized DMV affidavit prepared specifically for use at trial). Applying these standards, the top portions of the trespass notices—even if they contained hearsay statements beyond defendant’s own admissions, which they did not—qualified as non-testimonial business records. Initially, there is no dispute that the notices qualified under the hearsay exception for business records. A document qualifies as a business record if it was produced in the regular course of business, pursuant to a business routine, and was created “at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” CPLR 4518(a); People v. Cratsley, 86 N.Y.2d 81, 89 (1995). Those requirements ensure that the “recollection is fairly accurate and the entries routinely made.” Cratsley, 86 N.Y.2d at 89. To be sure, a document “prepared for the sole purpose of litigation” will not qualify as a business record. Martin, Capra and Rossi, New York Evidence Handbook § 8.3.3, at 763 (2d ed.) (emphasis in original). However, documents may be received as business records if, “while it was foreseeable that they might later be used for litigation -28- purposes, such was not their sole purpose when made.” People v. Guidice, 83 N.Y.2d 630, 635 (1994). Here, the trespass notices were produced pursuant to a business duty and in the regular course of business. In that regard, Delacruz, a person familiar with Duane Reade’s record-keeping practices, testified that Duane Reade made and kept trespass notices in the regular course of business (Delacruz: RA 107). He also testified that Duane Reade employees had a business duty to complete the notices “at the time” the events took place, and were required to accurately record the information contained in the notices (Delacruz: RA 107). Indeed, Delacruz himself had prepared and personally issued the 2008 trespass notice to defendant. Accordingly, there can be no question that Delacruz’s testimony provided a proper foundation for the admission of all three trespass notices as business records. See Cratsley, 86 N.Y.2d at 89-91.13 13 Defendant contends that the August 6, 2004 trespass notice was not a “contemporaneous record of objective facts” since it was dated seven days after defendant’s crime (Defendant’s Brief: 31-32). Defendant, however, did not argue at trial that the notice was not prepared contemporaneously and, thus, this claim is unpreserved. See People v. Evans, 59 A.D.3d 1127, 1128 (4th Dept. 2009) (“The objection by defendant to the admission of that exhibit did not encompass his present contention that some of the documents were not business records because they were not prepared at the time of mailing. Thus, that contention is not preserved for our review.”). In any event, Delacruz testified that Duane Reade employees had a business duty to complete the notices “at the time” the events took place, and were required to accurately record the information contained in the notices (Delacruz: RA 107). Absent contrary evidence, this Court must presume that Duane Reade employees followed that business duty in preparing the August 2004 notice. Indeed, the notice might have borne a later date for innocuous administrative reasons, which could explain defendant’s decision not to challenge its admission at trial on that ground. -29- Further, as the Appellate Division found, the trespass notices were non- testimonial because they were created for business purposes and not for the primary purpose of creating evidence for trial. Significantly, the notices were prepared by Duane Reade employees, not by law enforcement. They were retained as records by Duane Reade, not by the New York City Police Department. And, the notices were created to further Duane Reade’s business purposes, not to further a criminal prosecution. Specifically, the notices were intended to apprise defendant that he was no longer permitted to enter any Duane Reade stores in the future, and for Duane Reade to keep a record that defendant had been banned from its stores. Duane Reade’s primary purpose was to keep defendant away from its stores, not to create “testimony” for use at a trial. Simply put, by giving defendant a notice spelling out the legal consequences of re-entry, Duane Reade was trying to keep defendant away from its stores, by instilling fear that he would face harsh consequences if he returned. That, indeed, is the only plausible reason why Duane Reade made sure to give defendant a copy of the notice. Hence, while Duane Reade might have entertained the possibility that the notices might someday be relevant to a court case, that was not the primary purpose of their creation. In fact, every New York appellate court and New York federal district court to address the question has held that Duane Reade trespass notices are non-testimonial. See People v. Liner, 33 A.D.3d 479 (1st Dept. 2006) (two trespass notices barring the defendant from entering a chain of drugstores “were properly admitted as business -30- records and did not violate defendant’s right of confrontation” under Crawford), aff’d 9 N.Y.3d 856 (2007); People v. Cox, 63 A.D.3d 626, 627 (1st Dept. 2009) (trespass notices barring the defendant from entering Duane Reade stores “did not violate defendant’s right of confrontation” since “[t]hese records lacked any of the ‘indicia of testimoniality’”) (citations omitted); Liner v. Artus, 2008 WL 5114485 at *4 (Duane Reade trespass notices were not created for the purpose of memorializing witness testimony, but instead to inform a suspected shoplifter that he is no longer welcome and is excluded from the store’s general invitation to the public to enter its premises); Cox v. Bradt, 2012 WL 2282508 at *13 (Duane Reade trespass notices were not testimonial because they were “created and maintained for Duane Reade’s internal administration and not for the purpose of establishing or proving some fact at trial”); see also State v. Bellerouche, 120 P.3d 971, 974-75 (Wash. Ct. App. 2005) (trespass notices, offered to prove the defendant’s knowledge that his presence was forbidden, were non-testimonial). In response, defendant argues that the trespass notices were formalized and were “the functional equivalent of affidavits” (Defendant’s Brief: 24-25). He contends further that Duane Reade acted as an “arm of law enforcement” when issuing the notices (Defendant’s Brief: 30-32). In support of his argument, defendant notes that the notices cited a provision of the Penal Law, and that three witnesses “testified about the law enforcement consequences” of the notices. He also asserts that the signature of a police officer on one of the notices revealed that the officer -31- “was not just present at the time of the completion of the trespass notice, but was directly involved in producing, administering, and witnessing” the notice (Defendant’s Brief: 30-31). Contrary to defendant’s claim, Duane Reade did not act as a “law enforcement entit[y]” when issuing the notices (Defendant’s Brief: 30-31). As discussed, Duane Reade—not the police department—kept the records in its private files, and they were created primarily for business purposes, not as evidence for a subsequent criminal prosecution. These were clearly business documents, not police documents. See, e.g., Brown, 13 N.Y.3d at 340 (holding that the Office of the Chief Medical Examiner and Bode Technology, the scientific laboratories that prepared a DNA report, were not “law enforcement entities” since they “work independently from the District Attorney and the New York City Police Department”); Liner, 33 A.D.3d at 479 (holding that the Duane Reade trespass notices “were not prepared by or on behalf of law enforcement, nor were they created solely for the purpose of criminal prosecution”). Also, the record does not support defendant’s argument that a police officer was directly involved in the production and administration of the August 6, 2004 trespass notice (Defendant’s Brief: 30-31). There was absolutely no testimony at trial concerning the involvement of “PO B Giordano” in the preparation and administration of the August 6, 2004 trespass notice. Instead, all that the record reflects was that an individual named “PO B Giordano” signed his or her name next to a line entitled “Signature of second witness” (RA: 267 [People’s Ex. 6A]). Even -32- assuming that the second witness on this notice was a police officer, which was never established at trial, Delacruz clearly explained that Duane Reade—not the police— prepared and issued the notices (Delacruz: RA 107). * * * In short, defendant’s current challenges to the top portions of the 2004 trespass notices are unpreserved. And, in any event, the statements in those portions fell outside the purview of the Confrontation Clause. 3. Defendant Opened the Door to the Admission of the Bottom Portions of the 2004 Trespass Notices Next, defendant contends that his confrontation rights were violated by the admission of the bottom portions of the 2004 trespass notices, which described defendant’s conduct in “removing” and “concealing” store merchandise, and in attempting to leave the stores without paying (Defendant’s Brief: 40-42; see RA: 265 [People’s Ex. 5A], 267 [People’s Ex. 6A]).14 Initially, as noted above, defendant’s Confrontation Clause challenge to the admission of the bottom portions of the trespass notices is unpreserved. When defendant argued prior to trial that this Court’s decision in Liner barred the admission of the 2004 trespass notices, he was referring only to the top portions (RA: 36-37). 14 Defendant does not argue that the admission of the bottom portion of the 2008 notice violated his confrontation rights since the author of that notice (Delacruz) testified at trial. -33- Indeed, the trial court had previously ruled that the bottom portions would be redacted from the notices (RA: 38-39; see RA 266 [People’s Ex. 5], 268 [People’s Ex. 6]). Thus, the trial court was focused only on the top portions of the notices when it rejected defendant’s Confrontation Clause claim, which—as discussed—consisted of only a single sentence and was based on a plainly incorrect reading of Liner. Indeed, the court did not permit the People to introduce the bottom portions of the 2004 trespass notices until defense counsel opened the door during his questioning of Delacruz at trial. Critically, when the court ruled that the door had been opened, defendant did not raise a Confrontation Clause challenge to the admission of the bottom portions, nor did he argue that the Duane Reade employees who witnessed the events described in those portions were required to testify (RA: 111-12, 116). Accordingly, defendant has not preserved his current Confrontation Clause challenge to those portions of the notices. See Liner, 9 N.Y.3d at 856-57 (holding that the defendant’s failure to assert, at trial, that the admission of Duane Reade trespass notices violated his right of confrontation rendered the issue unpreserved); People v. Kello, 96 N.Y.2d 740, 743-44 (2001) (the defendant’s objection to the admission of 911 tapes on State common law hearsay grounds was insufficient to preserve his Confrontation Clause claim). In any event, the trial court’s evidentiary ruling was an appropriate exercise of discretion. This Court has long held that the prosecutor may present evidence necessary to “explain, clarify, and fully elicit” matters that the defendant has put in -34- issue. People v. Melendez, 55 N.Y.2d 445, 451-53 (1982). Additionally, if the defendant presents evidence that is misleading or incomplete, he “open[s] the door” to the introduction of any evidence—even otherwise inadmissible evidence—that is “reasonably necessary to correct the misleading impression.” People v. Massie, 2 N.Y.3d 179, 184 (2004). This Court has applied that rule in a variety of contexts, holding that a defendant may open the door to suppressed or otherwise inadmissible evidence by eliciting testimony that references inadmissible evidence or that presents only part of the picture to the jury. See, e.g., People v. Mateo, 2 N.Y.3d 383, 425-29 (2004) (defendant opened the door to admission of his full confession, portions of which had been precluded); Massie, 2 N.Y.3d at 184-85 (trial court properly ruled that questioning about photo identification procedure would open the door to admission of suppressed lineup identification); People v. Rojas, 97 N.Y.2d 32, 38-39 (2001) (defendant opened the door to evidence of attempted prison assault, which had been precluded by court’s pretrial Molineux ruling, by arguing that he had been unjustly placed in solitary confinement); People v. Blakeney, 88 N.Y.2d 1011, 1012 (1996) (by claiming that he did not know his alleged accomplice to a drug sale, defendant opened the door to evidence that he and the same accomplice committed a “nearly identical offense” 12 days later); see also People v. Hall, 18 N.Y.3d 122 (2011) (prosecutor “quite reasonably” suggested that, by testifying that he did not know defendant Hall, codefendant Freeman opened the door to evidence that he and Freeman had committed a previous crime together). -35- More particularly, as this Court recently held, testimony that violates the Confrontation Clause may be admitted “if the defendant opened the door to its admission.” People v. Reid, 19 N.Y.3d 382, 387-88 (2012) (holding that defendant opened the door to non-testifying co-defendant’s statement). Indeed, a defendant may not use the Confrontation Clause “to prevent the introduction of testimony that would explain otherwise misleading out-of-court statements introduced by the defendant.” Id. at 388. Importantly, the trial court’s evidentiary rulings in this area should not be overturned absent an abuse of discretion. See Massie, 2 N.Y.3d at 184 (“a trial court should decide ‘door-opening’ issues in its discretion”); see generally People v. Almonor, 93 N.Y.2d 571, 583 (1999) (“The trial court is granted broad discretion in making evidentiary rulings in connection with the preclusion or admission of testimony and such rulings should not be disturbed absent an abuse of discretion”). Applying these standards here, the trial court properly exercised its discretion by ruling that defendant opened the door to the introduction of the bottom portions of the 2004 trespass notices, which had previously been redacted. In that regard, during defense counsel’s questioning of Delacruz, counsel raised the issue of what information was contained in the redacted portions of the notices, and queried whether that information was accurate (RA: 108-11). Indeed, counsel specifically asked Delacruz whether he was familiar with the facts stated in the bottom portions of the 2004 notices (Delacruz: RA 110-11). As the People argued at trial, and as the -36- court found, that questioning put the facts in the bottom portions at issue. After all, defense counsel alluded to those facts in his questioning of Delacruz, and the jury had the right to understand the meaning of counsel’s questions. Defendant was not entitled to have it both ways: he could either keep the redactions and not mention the contents of the bottom portions, or he could ask about the bottom portions and thereby open the door. Defense counsel made his choice by attacking Delacruz with questions about his knowledge of the redacted portions. After counsel made that choice, the trial court properly ruled the redacted bottom portions admissible so that the jury would understand defense counsel’s questions. Further, by questioning Delacruz’s knowledge of the facts underlying the 2004 incidents, defense counsel raised the implication that the notices had not been issued for a legitimate purpose. In other words, through his questioning of Delacruz, defense counsel tried to imply that Duane Reade did not have a proper basis for issuing the 2004 notices. In response, the trial court properly permitted the People to introduce the redacted bottom portions to demonstrate that Duane Reade did in fact have a proper basis for issuing the notices. The jury was entitled to know that defendant’s license to enter Duane Reade had been revoked based on a “lawful order,” and not for an improper purpose, such as discrimination. See Penal Law § 140.00(5) (a person who “enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter”). A contrary holding by the trial court would have “. . . conceal[ed] from -37- the jury other details that would tend to explain” defense counsel’s cross-examination of Delacruz and place it “in context.” See Reid, 19 N.Y.3d at 388 (citations and internal quotation marks omitted). In addition, contrary to defendant’s contention, the remedy imposed by the trial court was not “inapt and prejudicial” (Defendant’s Brief: 42). Rather, as explained, the only way for the jury to understand defense counsel’s questioning of Delacruz was to admit the trespass notices in their unredacted form. The trial court’s evidentiary ruling, therefore, was reasonable and proper. Indeed, by his questions, defense counsel invited any prejudice that flowed from the admission of the redacted portions. Nevertheless, defendant insists that his questioning of Delacruz was merely “aimed to show that Delacruz was an inappropriate vehicle for the admission of trespass notices of whose administration Delacruz had no personal knowledge” (Defendant’s Brief: 41-42). But this argument makes no sense. The bottom portions of the notices had already been ordered redacted, so defense counsel had no need to question Delacruz about them to support his argument that they were “inadmissible.” He had already won that argument. Instead, as explained, defense counsel attempted to gain a rhetorical advantage in the eyes of the jury by pressing Delacruz as to whether he had knowledge of the facts in the redacted bottom portions. By doing so, defense counsel affirmatively placed those facts at issue and opened the door to admission of the unredacted documents. -38- * * * In short, defendant’s Confrontation Clause objection to the trial court’s ruling that defendant opened the door to the introduction of the bottom portions of the 2004 trespass notices is unpreserved. In any event, the court’s evidentiary ruling was proper. Certainly, it did not constitute an abuse of discretion as a matter of law. C. Any Error in the Admission of the Trespass Notices Was Harmless In any event, any error in the admission of the 2004 trespass notices was harmless. Of course, an alleged violation of the Confrontation Clause is subject to harmless error analysis. See Rawlins, 10 N.Y.3d at 157-58; People v. Douglas, 4 N.Y.3d 777, 779 (2005). And, here, there is simply no reasonable likelihood that the verdict would have been different if the 2004 notices had not been introduced. As explained, the People introduced the trespass notices for a single purpose: to prove that defendant had unlawfully entered the Duane Reade store on the night of the instant offense. The notices showed that his license and privilege to enter Duane Reade had been revoked. And significantly, even without the 2004 notices, there was ample evidence that defendant had no permission to enter Duane Reade. In that regard, Delacruz testified that on July 1, 2008, he had issued defendant a trespass notice after defendant had attempted to steal 55 boxes of Visine from another Duane Reade store (Delacruz: RA 102-04; RA 263-64 [People’s Ex. 4]). Delacruz had read the contents aloud to defendant, including the warning that defendant’s privilege to -39- enter all Duane Reade stores had been revoked, and that if he were to reenter any of the stores, he could be arrested for trespass (Delacruz: RA 117). In addition, the 2008 trespass notice, which Delacruz issued to defendant, was introduced into evidence, and defendant does not contend that its admission violated the Confrontation Clause. Thus, even without the 2004 notices, there was overwhelming proof that defendant had unlawfully entered the Duane Reade store. See Rawlins, 10 N.Y.3d at 157-58 (holding that the improper admission of a “testimonial” fingerprint report was harmless when another report, showing the same conclusion, had been properly admitted). In support of his argument that the admission of the 2004 trespass notices was not harmless, defendant claims that Delacruz’s trial testimony was “thoroughly impeached” (Defendant’s Brief: 44). But contrary to defendant’s contention, Delacruz gave clear, consistent testimony that, in the July 2008 incident, he warned defendant that he could not return to any Duane Reade store. And, Delacruz’s credible testimony was backed up by the admission of the 2008 trespass notice itself. Even though defendant refused to sign the 2008 notice, there is no doubt that Duane Reade issued it to him, as it bore his name and date of birth (RA: 263 [People’s Ex. 4]), and three photographs of defendant were taken at the time the notice was issued (RA: 264 [People’s Ex. 4]; see Delacruz: RA 117-18). Thus, there was no question that defendant knew he had been barred from all Duane Reade stores. -40- In response, defendant asserts that three trespass notices were stronger evidence than one notice (Defendant’s Brief: 45). But, as described, the admission of the 2008 trespass notice, along with Delacruz’s testimony, conclusively established that defendant’s license to enter Duane Reade had been revoked. The admission of the two 2004 notices perhaps made the proof even more overwhelming, but it was still overwhelming even without those notices. Next, defendant contends that the introduction of the 2004 trespass notices, without the testimony of the Duane Reade employees who issued them, deprived him of “vital areas of inquiry” (Defendant’s Brief: 47). But this argument is merely a rehash of his Confrontation Clause claim, which, as discussed, lacks merit. Notably, defendant never sought to have the Duane Reade employees at issue testify, nor did he subpoena them. See Williams, 132 S.Ct. at 2228 (denying Confrontation Clause claim and noting that absent witnesses “may always be subpoenaed by the defense and questioned at trial”) (plurality opinion). Simply put, defendant sought to use the Confrontation Clause as a sword to prevent the introduction of relevant, probative, non-testimonial records. The trial court properly rejected his claim. Finally, even if there were any error in the trial court’s ruling that defense counsel opened the door to the admission of the bottom portions of the 2004 notices, there is no reasonable probability that the admission of the unredacted notices made a difference to the verdict. Indeed, there was overwhelming evidence that defendant committed the charged burglary. Delacruz testified that he personally observed -41- defendant place several disposable cameras in his backpack and in a Duane Reade shopping bag. When confronted with his theft, defendant resisted being handcuffed, was combative toward Delacruz and his co-worker Jaime Noriega, and attacked Delacruz during his course of fleeing from the store. Nor was there any doubt about defendant’s identity, as Delacruz recognized him from a previous incident. Indeed, defendant admitted his identity at trial and concocted an absurd story that he needed multiple cameras to take erotic pictures of his girlfriend and that he planned to pay for the $50 worth of merchandise even though he only had $20 in his pocket (Barna: RA 201). The jury undoubtedly convicted defendant because of the compelling evidence against him, not because of the prior incidents. Thus, the verdict should not be disturbed. See Douglas, 4 N.Y.3d at 779 (holding that the violation of the Confrontation Clause was harmless in light of the overwhelming evidence against defendant).15 * * * In sum, defendant’s Confrontation Clause challenges to the admission of the 2004 trespass notices are largely if not entirely unpreserved and, in any event, meritless. 15 As discussed in detail in Point II, infra, the evidence of defendant’s prior crimes was relevant to his intent and knowledge, and the court properly gave a limiting instruction regarding this evidence. -42- POINT II THE TRIAL COURT’S MOLINEUX AND SANDOVAL RULINGS WERE PROPER EXERCISES OF DISCRETION (Answering Defendant’s Brief: Point II). Unable to demonstrate a Confrontation Clause violation, defendant next challenges the admission of the trespass notices for another reason. Specifically, citing People v. Molineux, 168 N.Y. 264 (1901), defendant argues that all three of the trespass notices, as well as Delacruz’s testimony about the July 1, 2008 incident, constituted improper propensity evidence (Defendant’s Brief: 57). Defendant also challenges the court’s decision to admit evidence that just before the instant crime, he was caught shoplifting in another Duane Reade store (Defendant’s Brief: 57). In addition, citing People v. Sandoval, 34 N.Y.2d 371 (1974), defendant contends that the trial court erred by permitting the People to cross-examine him about 4 of his 22 prior convictions, including his convictions for the incidents which led Duane Reade to issue the 2004 trespass notices (Defendant’s Brief: 53-56). Defendant’s claims are unavailing. A. The Trial Court’s Molineux Ruling was an Appropriate Exercise of Discretion 1. The Relevant Record Prior to jury selection, the People made an oral application, pursuant to People v. Molineux, to introduce evidence of six trespass notices that had been issued to defendant by Duane Reade prior to the instant crime, including the circumstances that -43- had prompted Duane Reade to issue each notice (RA: 8-10). In addition, the People sought to introduce evidence that Delacruz had caught defendant shoplifting in a Duane Reade store on July 1, 2008; that defendant had shoplifted from another Duane Reade store on January 30, 2009, just before the instant offense; and that defendant had a physical altercation with a Duane Reade employee on September 20, 2006 (RA 1-11). The prosecutor argued that the earlier incidents were probative of defendant’s intent. The prosecutor pointed out that, after being arrested in the present case, defendant denied that he had intended to steal the cameras and instead told the police that he had intended to purchase them (RA: 2). The prosecutor added that the prior incidents demonstrated defendant’s “knowledge that he was not supposed to be in Duane Reade,” which defendant had put at issue when “he told the detective that he thought that he was allowed into the Duane Reade” (RA: 7). In addition, the prosecutor argued that the 2008 incident explained how Delacruz, who was present during that incident, was able to recognize defendant on the day of the instant crime, and why he feared that defendant would try to flee (RA: 2-4). In response, defense counsel argued that the introduction of these prior bad acts would lead the jury to convict defendant “based on his prior actions and not what happened in this case,” and that the probative value of the evidence was not outweighed by the prejudice it would cause to defendant (RA: 11-14). As to the admission of the trespass notices, defense counsel stated that defendant would be willing instead to concede that he was not allowed in any Duane Reade store (RA: 12). -44- Justice Zweibel held that with regard to the January 30, 2009 petit larceny that occurred immediately prior to the instant offense, the People would be permitted to elicit the fact that defendant was given a Desk Appearance Ticket and that based upon the ticket, defendant “had knowledge that he wasn’t supposed to go into a Duane Reade” (RA: 19-21). The court held that such evidence had “a direct bearing upon [defendant’s] intent with regard to the present crime” (RA: 20). Regarding the July 1, 2008 incident, the court permitted the People to elicit Delacruz’s testimony about the incident, the trespass notice, and the fact that defendant was subsequently convicted of third-degree burglary for that crime (RA: 21). The court further allowed the People to introduce evidence that defendant had been issued Duane Reade trespass notices on May 20, 2004 and August 6, 2004, but held that the underlying facts of those incidents would be redacted from the notices (RA: 21-22, 27-28, 38-39). At trial, Delacruz testified about the July 1, 2008 incident, and the trespass notices dated July 1, 2008, May 20, 2004 and August 6, 2004 (Delacruz: RA 103, 107, 117-20, 141-42). The facts of the 2004 incidents, as recounted in the bottom portions of the notices, were admitted only after defense counsel opened the door (RA: 112; see Point I, supra). In addition, Officer Ng testified at trial about the January 30, 2009 shoplifting incident at Duane Reade, which occurred the same evening of the instant offense (Ng: RA 54-61). Immediately after Delacruz’s direct testimony, the court instructed the jury that the evidence regarding the July 1, 2008 incident could only be considered as to -45- defendant’s intent, identity or absence of mistake in the charged crime, and not “on the question of [defendant’s] propensity to commit the crime for which he is charged in this case” (RA: 104). In addition, following Ng’s testimony, the court instructed the jurors that the evidence regarding the other January 30, 2009 incident, which occurred immediately prior to the instant crime, could be considered only with respect to defendant’s intent, identity or absence of mistake in the present offense, and should not be considered for purposes of establishing “defendant’s propensity or predisposition to commit the crime for which he is charged in this case” (RA: 60). At the conclusion of the trial evidence, during its final charge, the court again instructed the jury: Now, there is evidence in this case that on another occasion the defendant engaged in criminal conduct and/or was convicted of a crime or crimes. That evidence was not offered and must not be considered for the purpose of proving that the defendant had a propensity or predisposition to commit the crimes charged in this case. It was offered as evidence for your consideration on the question of intent, identity and absence of mistake or accident. If you find the evidence believable, you may consider it for that limited purpose and for none other (RA: 248). On appeal, the Appellate Division held that the trial court’s Molineux ruling was a proper exercise of discretion. Cornelius, 89 A.D.3d at 595. The court found that the uncharged crimes were “probative of defendant’s knowledge and intent with regard to the burglary in this case, and helped establish that defendant knew that his entry into the store was unlawful.” Id. The court also found that the probative value -46- of the evidence “outweighed any potential for prejudice, which was minimized by the [trial] court’s suitable limiting instructions.” Id. 2. Discussion Of course, all relevant evidence is admissible unless its admission violates some exclusionary rule. See People v. Scarola, 71 N.Y.2d 769, 777 (1988). Evidence is relevant “if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.” Id. Further, evidence of a defendant’s uncharged crimes or bad acts is admissible if probative of some fact in issue other than the defendant’s criminal propensity. See Rojas, 97 N.Y.2d at 37-40; People v. Till, 87 N.Y.2d 835, 836 (1995). For instance, evidence of uncharged crimes may be admissible when it is probative of motive, intent, the absence of mistake or accident, a common scheme or plan, or identity. See Molineux, 168 N.Y. at 293. Additionally, the People may introduce evidence of uncharged crimes to provide the jury with useful “background information,” People v. Tosca, 98 N.Y.2d 660, 661 (2002), or “to complete the narrative of the episode.” Till, 87 N.Y.2d at 837. Simply put, prior bad acts evidence is generally admissible if it “has a bearing upon a material aspect of the People’s case.” People v. Santarelli, 49 N.Y.2d 241, 247 (1980). Finally, the decision to admit uncharged crime evidence rests squarely within the discretion of the trial court. See People v. Gamble, 18 N.Y.3d 386, 398 (2012). -47- Judged by these standards, the trial court’s Molineux ruling was a proper exercise of discretion. Initially, as defendant does not appear to dispute, the May 20, 2004, August 6, 2004, and July 1, 2008 trespass notices—and Delacruz’s testimony that he personally gave the 2008 trespass notice to defendant—were highly probative of an element of burglary: defendant’s knowledge that he was not permitted to enter Duane Reade. Indeed, the People were entitled to demonstrate that defendant had previously received trespass notices that revoked his privilege to enter any Duane Reade stores and warned him that he could be arrested for trespass if he did. After all, such evidence was probative in establishing that, when defendant entered the Duane Reade store in this case on January 30, 2009, he knew that his entry was unlawful. Clearly, then, the trespass notices were admitted for a proper, non- propensity purpose. Next, as the trial court properly found, Delacruz’s testimony about the details of the 2008 incident was offered for a non-propensity purpose: to explain why Delacruz recognized defendant and focused his attention on defendant during the instant burglary. See People v. Gines, 36 N.Y.2d 932 (uncharged rape of the victim admissible in a robbery case, in part to “establish the complainant’s opportunity to identify defendant as her assailant”); see also People v. Jameson, 66 A.D.3d 407, 408 (1st Dept. 2009) (evidence that a store manager recognized the defendant from prior shoplifting attempts was “highly probative” of the manager’s ability to identify defendant, “and its value would have been unduly restricted had it been limited to -48- testimony that the manager had simply seen defendant on prior occasions”); People v. Matthews, 276 A.D.2d 385, 386 (1st Dept. 2000) (same). This evidence also explained why defendant tried to flee from the store and was aggressive when confronted by Delacruz in the instant burglary—presumably because he recognized Delacruz as the security officer who had confronted him during the 2008 incident. In addition, Ng’s testimony about defendant’s attempt to steal from another Duane Reade earlier the same day was relevant for a non-propensity purpose too. First, it gave background and completed the narrative of events. In particular, it explained why defendant was in the vicinity of the Duane Reade when he committed the instant burglary—just 25 minutes earlier, he had been released from a precinct only a few blocks away. The evidence of this contemporaneous incident also compellingly demonstrated defendant’s intent to steal. Simply put, in the short period of time between the two incidents, defendant’s “state of mind” had not changed (Cornelius: RA 181). He was intent on stealing from Duane Reade that evening. Thus, as the trial court properly recognized, the contemporaneous incident at another Duane Reade had a “direct bearing” upon defendant’s intent with regard to the instant offense (RA: 19-20). See People v. Bayne, 82 N.Y.2d 673, 676 (1993) (holding that 146 uncharged forged checks were properly admitted to show defendant’s intent to commit the charged forgeries); People v. Alvino, 71 N.Y.2d 233, 245-47 (1987) (finding that the trial court properly admitted prior uncharged drug sales after -49- defendant testified that he never sold drugs); see also People v. Dorm, 12 N.Y.3d 16, 19 (2009) (evidence of prior assaults was probative of defendant’s motive and intent to assault the victim). Simply put, all of the Molineux evidence was admitted for legitimate purposes: to prove the unlawful entry element of burglary, to explain why Delacruz recognized defendant, to complete the narrative of events, and to show defendant’s intent to steal. Indeed, all this evidence was important because defendant repeatedly denied— both in his statement to the police and in his trial testimony—that he knew he had been barred from Duane Reade stores and that he intended to steal. And, contrary to defendant’s repeated contentions, none of this evidence was admitted to show defendant’s “propensity” to commit crimes. In fact, the court repeatedly instructed the jury on the limited purpose of the Molineux evidence. In that regard, the court gave three separate instructions. First, immediately after Delacruz’s direct testimony, the court instructed the jury that the evidence regarding the July 1, 2008 incident could be considered only as to defendant’s intent, identity or absence of mistake in the charged crime, and not “on the question of [defendant’s] propensity to commit the crime for which he is charged in this case” (RA: 104). Second, following Ng’s testimony, the court gave the jury a similar instruction regarding the shoplifting incident that immediately preceded the instant crime (RA: 60). Third, at the conclusion of the trial evidence, during its final charge, the court again instructed the jury that the prior crime evidence must not be -50- considered for defendant’s propensity to commit the crime charged in this case, but instead was offered on the questions of intent, identity, and absence of mistake or accident (RA: 248). Of course, juries are presumed to follow the court’s instructions. See People v. Davis, 58 N.Y.2d 1102, 1104 (1983). Thus, these careful instructions ensured that the jury did not use the challenged evidence for an improper purpose. See People v. Small, 12 N.Y.3d 732, 733 (2009) (noting that the trial court gave a proper limiting instruction after the introduction of Molineux evidence).16 In response, defendant complains that the admission of the three trespass notices, and the details of his prior crimes, “went beyond what was necessary to the prosecution’s case” (Defendant’s Brief: 59). But as explained, all of the evidence was relevant and probative. Indeed, there was a sound reason why the People wished to introduce evidence of more than just one incident that resulted in defendant being barred from Duane Reade stores. It was apparent from the outset that defendant would attempt to persuade the jury that he had not read the trespass notices, that they had not been read to him, and that he therefore did not know that he was banned from entering any and all Duane Reade stores (RA: 7). Indeed, at trial, defendant testified that he did not remember signing either of the 2004 trespass notices 16 In light of these instructions, including the court’s detailed final charge, defendant’s complaint that “no instruction was given to the jury about the purpose of the trespass notices when they were admitted” is frivolous (Defendant’s Brief: 60) (emphasis added). Indeed, defendant requested no such limiting instruction at the time the notices were admitted (RA: 111-12, 116). -51- (Cornelius: RA 187-88, 194-95), or receiving the 2008 notice that had been issued by Delacruz (Cornelius: RA 188-89, 195). Defendant also testified that in the 2008 incident, he did not believe that he was trespassing (Cornelius: RA 188-89). The fact that defendant had received multiple warnings from Duane Reade was relevant to refute his assertions that he did not believe that he was trespassing. See Cox, 63 A.D.3d at 627 (holding that the admission of seven trespass notices was proper where defendant contended that he was unaware that he had been barred from Duane Reade stores). Further, as this Court has held, the fact that the defendant’s knowledge and intent could have been proven by the bare minimum evidence did not bar the People from seeking to present all admissible evidence available to them. See, e.g., Alvino, 71 N.Y.2d at 245; People v. Marrin, 205 N.Y. 275, 280 (1912). Indeed, in People v. Alvino, the Court upheld the introduction of fifteen prior transactions in which the defendant had issued false documents similar to the false document at issue. See Alvino, 71 N.Y.2d at 243. As this Court has explained, “the successive repetition of similar unlawful acts tends to reduce the likelihood of the actor’s innocent intent on the particular occasion in question.” In re Estate of Brandon, 55 N.Y.2d 206, 212 (1982). Notably, and contrary to defendant’s contention (Defendant’s Brief: 59), the trial court conducted the required balancing test and gave appropriate consideration to the need to avoid undue prejudice to defendant. In that regard, although the -52- People requested that they be allowed to introduce six trespass notices that had been issued to defendant by Duane Reade, the court limited the People to introducing only three of the trespass notices, and initially held that the underlying facts contained within the two 2004 notices would be redacted, until defendant opened the door (RA: 22, 27-28). In addition, the trial court prohibited the People from eliciting testimony about defendant’s altercation with a Duane Reade security officer on September 20, 2006 (RA: 22-23). It is evident, therefore, that the court’s ruling was carefully crafted to shield defendant from undue prejudice. In short, the trial court’s Molineux ruling was fair, balanced and appropriate, and certainly did not constitute an abuse of discretion. B. The Trial Court’s Sandoval Ruling was an Appropriate Exercise of Discretion Next, defendant argues that the trial court’s Sandoval ruling was an abuse of discretion (Defendant’s Brief: 52-56). This claim too is without merit. 1. The Relevant Record Defendant had 22 prior convictions, including convictions for burglary, petit larceny, assault, trespass, criminal possession of stolen property, and possession of marihuana (RA: 23-26). And, “most” of his petit larceny convictions were for stealing from Duane Reade (RA: 24-26, 29). Prior to jury selection, the People sought permission pursuant to People v. Sandoval, to cross-examine defendant, in the event that he testified, about five of his prior convictions and the facts underlying those -53- crimes (RA: 23-27). Specifically, the People sought to question defendant regarding his two 2004 larcenies of Duane Reade stores, detailed above, as well as a 2003 larceny in which he stole 26 disposable cameras from a Duane Reade store, defendant’s November 2006 assault conviction for assaulting a Duane Reade store security employee, and a November 2007 trespass in which defendant entered a Duane Reade unlawfully (RA: 24-25). The People noted that they were limiting their Sandoval request by seeking to question defendant about only 5 of his 22 prior convictions (RA: 25). Defense counsel argued that cross-examination about these five convictions, when combined with the Molineux evidence, would portray defendant to be a “career petty larcenist,” and would lead the jury to convict him based on his past crimes (RA: 28-29). Justice Zweibel issued a “Sandoval compromise” (RA: 29-30), ruling that the People would be permitted to question defendant about the fact that he had three petit larceny convictions (one in 2003 and two in 2004) and one assault conviction in 2006, but precluding inquiry into the underlying facts (RA: 29-30).17 Also, the court permitted the People to elicit the fact that defendant was issued trespass notices in connection with the three petit larceny convictions (RA: 30). The court explained that the “probative value [of this evidence] outweighs the prejudice from the standpoint of 17 As explained in Point I, supra, defendant opened the door to evidence of the underlying facts of the 2004 incidents. -54- [defendant’s] intent and his knowledge, his notice that he wasn’t supposed to be in Duane Reade” (RA: 30). The court precluded the People from questioning defendant about the November 2007 trespass conviction (RA: 31-32). After the court issued its Sandoval ruling, defense counsel asked for a “further compromise”—that the People be limited to eliciting testimony that defendant had been issued trespass notices on the dates of the three petit larceny crimes and was no longer permitted to enter any Duane Reade stores (RA: 30-31). Justice Zweibel rejected counsel’s request, reasoning that the jury “should understand [defendant’s] conduct” and “shouldn’t think that he happened to casually walk in [to Duane Reade] and he was handed a summons. [Defendant] was committing a crime on each of those occasions” (RA: 31). At trial, on direct examination, defendant acknowledged that he had been convicted of petit larceny “a couple of times,” trespassing “a couple of times” and burglary, all arising from incidents at Duane Reade stores (Cornelius: RA 176-81). On cross-examination, the prosecutor confirmed that during direct examination, defendant acknowledged that he had been convicted of trespass and burglary (Cornelius: RA 187-88). The prosecutor also asked defendant about the May 20, 2004 and August 6, 2004 petit larcenies (Cornelius: RA 187-89, 191-92). Despite the court’s ruling permitting inquiry into defendant’s 2003 petit larceny and 2006 assault, the prosecutor did not ask about those convictions. At the close of the evidence, during its final instructions, the court told the jury: -55- Now, you also heard testimony about the defendant’s prior convictions, including a May 2004 conviction for petit larceny, an August 2004 conviction for petit larceny and a September [2006] conviction for assault. I charge you that you may take the defendant’s prior convictions into consideration only for the purpose of evaluating the credibility of the defendant’s testimony here in court, but you may not consider it as evidence that the defendant is guilty of the crimes with which he is charged here (RA: 248). On appeal, the Appellate Division held that the trial court’s Sandoval ruling was a proper exercise of discretion. Cornelius, 89 A.D.3d at 595. The court found that “[t]he convictions at issue were highly probative of credibility, and the [trial] court only permitted inquiry into a small portion of defendant’s extensive criminal record.” Id. 2. Discussion When a criminal defendant assumes the role of a witness at his own trial, he places himself in the position of any other witness, having the same duties and exposures. That includes being cross-examined about prior criminal, vicious, or immoral conduct which has a bearing on his credibility. See People v. Duffy, 36 N.Y.2d 258, 262 (1975); Sandoval, 34 N.Y.2d at 374. This rule has its roots in the common law, which disallowed the testimony of the accused at trial on the premise that his testimony would be wholly untrustworthy. See People v. Hayes, 97 N.Y.2d 203, 207 (2002). Once the common law disqualification was removed, courts permitted impeachment of the accused based upon prior convictions to assist the jury in assessing the reliability of the defendant’s testimony. See id. -56- In particular, crimes of personal dishonesty, such as “theft or fraud,” are the types of crimes and acts “of individual dishonesty, or untrustworthiness” that “usually have a very material relevance, whenever committed,” to a defendant’s credibility. Sandoval, 34 N.Y.2d at 377. Other crimes are also fair fodder for impeachment where they reveal “a willingness or disposition on the part of the particular defendant voluntarily to place the advancement of his individual self-interest ahead of the principle or of the interests of society.” Such self-interest reflects the defendant’s possible willingness “to do so again on the witness stand.” Id. This Court has long held that “[i]t does not matter that the offenses or the acts inquired about are similar in nature and character to the crime for which the defendant is standing trial.” People v. Sorge, 301 N.Y. 198, 200 (1950). Indeed, in Sorge, the Court emphasized that “the prosecutor may not arbitrarily be shackled by the circumstance that the defendant has pursued a specialized field of crime.” Id. After all, it would make no sense for a criminal specialist to be automatically entitled to a more favorable impeachment ruling than a criminal who chose to dabble in a variety of offenses. And, since Sorge, this Court has repeatedly re-affirmed that a defendant should not be shielded from impeachment simply because his past crimes are similar to the crime for which he is standing trial. See People v. Smith, 18 N.Y.3d 588, 594 (2012) (“Because this Court has been disinclined over the years to construct per se rules concerning the cross-examination of a defendant where prior convictions are similar to the pending charges, the discretion of the trial court regarding such -57- determinations remains intact.”); Hayes, 97 N.Y.2d at 208 (declaring that this Court has “declined to prohibit cross-examination solely because of the similarity of prior acts to the crimes charged” and that cross-examination need not be limited to the mere existence of defendant’s prior convictions where prior crimes are similar to the pending charges”); People v. Mattiace, 77 N.Y.2d 269, 275-76 (1990) (not erroneous as a matter of law to permit cross-examination regarding prior crimes similar to the ones charged). In fact, given the direct relationship between theft and dishonesty, cross- examination of a defendant about his prior theft-related crimes is permissible even when they are essentially identical to his charged criminal conduct. For instance, in People v. Schwartzman, 24 N.Y.2d 241, 244 (1969), where the defendant was on trial for grand larceny, this Court found that the trial court had not abused its discretion in permitting the People to use over 20 prior instances of similar misconduct on cross- examination to impeach Schwartzman’s credibility. Because Sandoval rulings are committed “largely, if not completely” to the sound discretion of the trial court, they are generally beyond the scope of this Court’s review power. Mattiace, 77 N.Y.2d at 274 (internal quotation marks and citation omitted); see also See Smith, 18 N.Y.3d at 594. Indeed, this Court has described a Sandoval determination as “essentially an evidentiary determination.” People v. Evans, 94 N.Y.2d 499, 505 (2000). Thus, as with all other evidentiary rulings, this Court reviews a Sandoval determination only for abuse of discretion as a matter of -58- law. See, e.g., Mattiace, 77 N.Y.2d at 276; People v. Smith, 59 N.Y.2d 156, 167-68 (1983). Here, the trial court issued a Sandoval compromise that plainly fell within its wide range of discretion. Defendant has been convicted of 22 crimes, including one felony burglary, since 2001 (RA: 23-26, 29, 40). As the court pointed out, “almost all” of defendant’s convictions were for theft-related crimes, and “most” of those convictions “arose out of thefts from Duane Reade” (RA: 29). It was certainly fair and appropriate for the trial court to allow the People to question defendant about only three theft-related crimes, which were highly relevant to credibility. Indeed, the court would have acted well within its discretion in permitting inquiry into a greater number of defendant’s prior crimes, given that he had 22 prior convictions (RA: 29). Nor was defendant entitled to special protection in light of his “specialization” in stealing from Duane Reade stores. Simply put, defendant’s prior larcenies were highly relevant to credibility, and his history of stealing from Duane Reade did not shield him from relevant and probative cross-examination. Notably, the People did not ask defendant about his 2006 assault or 2003 petit larceny convictions, even though the court had permitted such an inquiry. Thus, defendant’s appellate references to those crimes (see Defendant’s Brief: 53, 61) are inapt, as the trial court’s ruling permitting inquiry into them is a moot point. See, e.g., People v. Gee, 56 A.D.3d 1205, 1205-06 (4th Dept. 2008) (suppression ruling moot where the People did not introduce the seized evidence at trial); People v. Prude, 2 -59- A.D.3d 1318, 1320 (4th Dept. 2003) (Molineux ruling moot where People did not present the challenged evidence at trial).18 As a last gasp, defendant merges his Molineux and Sandoval claims and contends that the admission of the Molineux evidence, together with the Sandoval ruling, denied him his constitutional right to a “fair trial” (Defendant’s Brief: 52, 61- 62). However, defendant never raised a constitutional claim at trial. Thus, as the Appellate Division held, see Cornelius, 89 A.D.3d at 595, defendant’s constitutional claims with regard to the Molineux and Sandoval rulings are unpreserved. In any event, as explained, the court’s Molineux and Sandoval rulings were entirely proper. Indeed, the court issued careful compromise rulings that permitted only relevant and probative evidence to be introduced.19 Lastly, as with the Molineux evidence, the court issued a proper limiting instruction regarding the impeachment value of the prior convictions. Specifically, the court advised the jury that it could use the impeachment evidence for “evaluating the credibility of the defendant’s testimony here in court” (RA: 248). And, of course, 18 Further, as discussed above, the court issued a proper Molineux ruling permitting evidence of defendant’s 2008 burglary and the larceny committed the same evening as the instant offense. A fortiori, since substantive evidence of those crimes was properly admitted, the People obviously had the right to ask defendant about them. 19 Also unpreserved is defendant’s claim that the trial court “conflated” the Molineux and Sandoval rulings (Defendant’s Brief: 56). Defendant never raised this claim at trial, and the Appellate Division found it unpreserved. See Cornelius, 89 A.D.3d at 595. In any event, this claim is meritless. As discussed, the trial court issued separate Molineux and Sandoval rulings. -60- juries are presumed to follow the court’s instructions. See Davis, 58 N.Y.2d at 1104. The court’s instructions thus ensured that the jury did not use the evidence for an improper propensity purpose.20 C. Any Error in the Trial Court’s Molineux and Sandoval Rulings was Harmless In any event, even assuming that the trial court’s Sandoval and Molineux rulings could conceivably be viewed as improper, they were undoubtedly harmless. After all, as described above (see Point I[C], supra), there was overwhelming evidence of defendant’s guilt. Indeed, defendant was caught red-handed burglarizing the Duane Reade store by a security guard who recognized him. Thus, even if any of the prior crimes evidence should not have been admitted, defendant suffered no prejudice, as his conviction was a foregone conclusion. See People v. Gillyard, 13 N.Y.3d 351, 356 (2009) (admission of Molineux evidence harmless in light of 20 Defendant contends that the court’s charge “confus[ed]” the jury because, in its instruction about the Sandoval evidence, the court referenced defendant’s 2006 assault conviction, about which the prosecutor asked no questions at trial (Defendant’s Brief: 61; see RA: 248). However, defendant never objected to the court’s instruction at trial and, thus, this claim is unpreserved. See People v. Contes, 60 N.Y.2d 620, 621 (1983). In any event, the court’s passing reference to the assault conviction was inconsequential since no evidence of the assault was introduced at trial. Surely, the court’s inadvertent reference to the assault—to which defendant failed to object—was far less prejudicial than questioning by the prosecutor would have been. And, for all the reasons discussed above, the court acted well within its discretion by permitting the prosecutor to ask about the assault. -61- overwhelming evidence against defendant); People v. Grant, 7 N.Y.3d 421, 424 (2006) (same: Sandoval).21 * * * In sum, defendant’s challenges to the trial court’s Molineux and Sandoval rulings are partially unpreserved and entirely unavailing. Certainly, the court’s evidentiary rulings did not constitute an abuse of discretion as a matter of law. 21 Notably, defendant cannot argue that the trial court’s Sandoval ruling deterred him from testifying, since he did in fact testify at trial. PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 15480, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2007. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.