holding that evidence of similar uncharged crimes is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral mattersSummary of this case from Quinones v. Portuondo
Argued September 4, 1987 Argued November 10, 1987
Decided December 17, 1987
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Martin B. Stecher, J., Frank J. Blangiardo, J.
Bertrand J. Kahn and Philip L. Weinstein for appellant in the first above-entitled action.
Robert M. Morgenthau, District Attorney (Mark Cammack and Mark Dwyer of counsel), for respondent in the first above-entitled action.
Robert M. Morgenthau, District Attorney (Deborah Hickey and Donald J. Siewert of counsel), for appellant in the second above-entitled action. Eugene Feldman for respondent in the second above-entitled action.
These two unrelated appeals concern the admissibility, under the rule in People v Molineux ( 168 N.Y. 264), of evidence of prior crimes to establish intent in the prosecution of charges in which the gist of the offense is guilty knowledge. In People v Alvino, defendant was charged with issuing a false certificate (Penal Law § 175.40) and bribe receiving, second degree (Penal Law former § 200.10). During their direct case, the People offered evidence of 15 similar crimes to establish that defendant knew an amended driver's license was false when he issued it and that it was issued because of an agreement between defendant and another to issue amended drivers' licenses for money. In People v Hernandez, defendant was charged with various drug counts, including criminal sale, possession and possession with intent to sell. Evidence of prior drug sales was offered on rebuttal, after defendant had admitted possession of the drugs but denied that he intended to sell them or that he had ever sold drugs in the past, to establish his intent to sell. The evidence was properly received in both cases and the convictions should, therefore, be sustained.
Defendant Alvino was a cashier employed by the New York State Department of Motor Vehicles in Manhattan. His duties included processing, approving and issuing various licenses, permits and, as in this case, amended drivers' licenses for which no fee is charged. The principal witness for the prosecution was Mario Falto, a man, who by his own admission, had spent the last 10 years of his life illegally obtaining various licenses and other documents by bribing officials of the Department of Motor Vehicles. On July 19, 1982, he was arrested on one such charge and agreed to work undercover for the District Attorney in hopes of obtaining a more lenient sentence.
Falto testified at defendant's trial that, while working with the District Attorney on September 10, 1982, he gave defendant $100 in cash in return for defendant's processing and issuing a false amended driver's license in the name of Victor Lopez. An investigator for the District Attorney's office, standing nearby at the time of the transaction, testified that he saw Falto hand defendant five bills in United States currency. The People also introduced two tape recordings of conversations between Falto and defendant on the day of the charged crimes. On one tape, which recorded the transaction when Falto received the amended license, Falto stated he was handing defendant money. The other recorded a conversation between defendant and Falto later in the day. Although the tape was barely audible, the People claim that the second conversation relates to the Lopez license transaction and that statements made by defendant and recorded on the tape constituted an admission by him that he received money from Falto. Over defendant's objections, Falto was also permitted to testify that he had engaged in 15 prior transactions with defendant in which defendant had issued similar false documents to Falto or his partner in return for money.
Before receiving this evidence, the court held an extensive inquiry in the absence of the jury, as we have suggested a court should (see, People v Ventimiglia, 52 N.Y.2d 350, 361-362). At the hearing, the prosecutor contended that the evidence was admissible either on the issue of intent or absence of mistake. Defense counsel opposed reception of the evidence asserting that intent or mistake was not in issue because defendant would not claim that he had taken the money by mistake or without any criminal intent but that he had not taken it at all. Indeed, that was defendant's testimony at trial. Counsel claimed, therefore, that the evidence was not relevant and that the prejudice resulting from its reception far exceeded its probative value. The court admitted the testimony and the jury found defendant guilty as charged. A divided Appellate Division affirmed the judgment.
In People v Hernandez, defendant was convicted after trial of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [intent to sell]) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). The charges arose from an incident observed by a four-man police team during their surveillance of a Manhattan schoolyard. From the roof of a nearby building, two officers observed defendant engage in two suspicious transactions which appeared to be drug sales. No arrests were made, however, until they observed a third transaction. After the third buyer left the scene, the two officers on the roof notified two officers on the ground who then followed the buyer and arrested him. They found a glassine envelope marked "Force 44" in his shoe and 37 hypodermic needles on his person. The officers on the roof then descended, followed defendant and arrested him. They found in his possession 21 envelopes containing cocaine, each stamped with the logo "Force 44".
After the People had presented this evidence at trial, defendant took the witness stand. He testified that he was an unemployed pauper and had been addicted to cocaine for the last 10 years. He claimed that to support his habit he had become a professional shoplifter who stole clothing from department stores and then sold it on the streets. He admitted several prior larceny arrests and convictions and one arrest on May 1, 1984, after which he had pleaded guilty to criminal possession of a controlled substance. Defendant testified that on the day of his arrest he had purchased drugs from a seller and paid $105 for 21 $5 glassines of cocaine. The money for the purchase had come from his sale of six pairs of jeans and five shirts, all stolen. He stated that the "nickel bags" in his sneakers were for his own consumption and he estimated that they would last him no more than an hour. He was an addict, he claimed, not a drug seller; he had not intended to sell the drugs to anyone. Indeed, he claimed he had never sold drugs to anyone.
In light of defendant's claim, the People were permitted on cross-examination to question him about three recent episodes on May 1, 12 and 15, 1984, when he allegedly had sold drugs. He denied the People's accusations and repeated his claim that he had never sold drugs. The People then recalled Officer Bisogna, one of the arresting officers who testified, on rebuttal, that on May 1, 1984 he saw defendant on the street holding glassine envelopes in his hand and surrounded by a crowd. When defendant sighted him, Officer Bisogna said, he threw the glassine envelopes to the ground. Defendant was arrested and, as defendant had admitted, pleaded guilty to criminal possession of a controlled substance. Officer Bisogna and Officer Orlando also testified on rebuttal that they watched from the rectory of a neighborhood church on May 12, 1984 at 6:00 P.M., disguised in clerical garb, as defendant appeared some 15 feet away holding a clear glassine bag containing about 50 glassine envelopes. Customers lined up in front of defendant exchanging money for glassine envelopes. The officers arrested one of the buyers, who possessed glassine envelopes, but defendant escaped before they could arrest him. Officer Orlando also testified he observed three other sales by defendant on May 15, 1984, which resulted in his arrest and the arrest of a buyer, both of whom were found in possession of glassine envelopes containing cocaine.
This rebuttal evidence of prior crimes was received over defendant's objection and after an extended colloquy at which the People first urged that it was admissible on the issue of credibility. Defendant contended, however, that the People were bound by defendant's answers on cross-examination and could not introduce collateral evidence to impeach him (see, People v Crandall, 67 N.Y.2d 111, 118; People v Pavao, 59 N.Y.2d 282, 288; People v Schwartzman, 24 N.Y.2d 241, 245, cert denied 396 U.S. 846). The People then urged that defendant had sought to controvert his intent to sell — a material fact in the prosecution — by his bizarre testimony and that the evidence of uncharged crimes was admissible on rebuttal to disprove it. The court admitted the rebuttal evidence solely to impeach defendant's credibility and he was convicted of criminal sale, possession with intent to sell, and possession.
The Appellate Division, basing its holding on our decision in People v Crandall ( 67 N.Y.2d 111, supra), modified on the law by reversing the convictions for criminal sale and possession with intent to sell and ordering a new trial on those counts. It affirmed the count charging criminal possession in the seventh degree inasmuch as defendant had admitted possession. The Appellate Division stated that the rebuttal testimony could not be justified on the theory that it was appropriate to show defendant's intent to sell, because to be admissible for such purpose the evidence would have to be tendered as part of the People's direct case. It held, therefore, that the only possible basis for admission of the evidence was to impeach defendant's credibility. It held that defendant's denial that he ever sold drugs did not permit the prosecution to cross-examine defendant about specific instances of alleged prior drug sales and to introduce, through extrinsic evidence, such prior sales. Two Judges dissented. They contended that the evidence was not collateral evidence, used only to impeach credibility, and it should have been received as evidence of guilt because defendant had not merely denied guilt but had tried to prove a material fact in exoneration of the charge, that he had never sold drugs and did not intend to sell those in his possession in this instance. Before this court the People contend the evidence of prior crimes was admissible as evidence of guilt and under the circumstances, properly received on rebuttal. We reverse and reinstate the judgment of conviction.
We recently reaffirmed the well-established rules that evidence is relevant if it has "any `"`tendency in reason to prove any material fact'"'" and that all relevant evidence is admissible at trial unless admission violates some exclusionary rule (People v Lewis, 69 N.Y.2d 321, 325, citing Richardson, Evidence § 4, at 2 [Prince 10th ed], quoting Uniform Rules of Evidence, rule 1 ). Evidence of similar uncharged crimes has probative value, but as a general rule it is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his past (see, People v Lewis, supra; People v Allweiss, 48 N.Y.2d 40, 46). Therefore, the rule is stated that if the only purpose of the evidence is to show bad character or propensity towards crime, it is not admissible. Evidence of prior uncharged crimes may be received, however, if it helps to establish some element of the crime under consideration or is relevant because of some recognized exception to the general rule (People v Lewis, supra; People v Beam, 57 N.Y.2d 241, 250; People v Allweiss, supra; People v Carmack, 44 N.Y.2d 706, affg 52 A.D.2d 264, 265-266, 53 A.D.2d 1017). In People v Molineux ( 168 N.Y. 264, 293, supra), we stated that evidence of uncharged crimes may be relevant to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant. The list, of course, is not exhaustive (People v Jackson, 39 N.Y.2d 64). Even when admissible for such purposes, however, the evidence may not be received unless its probative value exceeds the potential for prejudice resulting to the defendant (People v Ely, 68 N.Y.2d 520, 529; People v McKinney, 24 N.Y.2d 180, 184).
Whether evidence of prior crimes may be admitted under the Molineux rule is a question of law, not discretion (see, People v Fiore, 34 N.Y.2d 81, 84; People v Grutz, 212 N.Y. 72, 77). If the evidence of prior crimes is probative of a legally relevant and material issue before the court, and for that reason not automatically barred under the general rule, admissibility turns on the discretionary balancing of the probative value and the need for the evidence against the potential for delay, surprise and prejudice (see, People v Ventimiglia, supra, at 359; People v Allweiss, supra, at 47).
Evidence of prior criminal acts to prove intent will often be unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself (see, e.g., People v Crandall, 67 N.Y.2d 111, supra [criminal sale of drugs]; but see, People v Jackson, 39 N.Y.2d 64 , supra; People v Bristow, 106 A.D.2d 510; People v Molineux, supra [homicide committed by concealing poison in a common headache salt]; People v McKinney, supra [assault by strangling and stabbing victim]). It may be admitted to prove intent, however, when proof of the act falls short of demonstrating that the defendant acted with a particular state of mind and where proof of a prior act is relevant to that issue. We explained the distinction in People v Katz ( 209 N.Y. 311, 328): "Simple proof showing that A. shot B. at one time and place throws no light upon the charge that A. poisoned C. at another time and place. In either of these cases guilty knowledge or intent is inferable from the nature and surroundings of each act, and each must be judged on its own circumstances. Quite another principle is to be invoked, however, when guilt cannot be predicated upon the mere commission of the act charged as a crime. In such a case the general rule gives way to the exception under which guilty knowledge of a defendant may be proved by evidence of his complicity in similar offenses under such circumstances as to support the inference that the act charged was not innocently or inadvertently committed." An example of the latter case is where the act itself is equivocal and, unless accompanied by some guilty knowledge, the transaction would not be criminal. In such a case, evidence that defendant did the act may allow no ready inference of defendant's guilty state of mind. Thus, as a matter of necessity, evidence of prior uncharged crimes is more likely to be admissible to create an inference of guilty knowledge in such cases (see, e.g., Matter of Brandon, 55 N.Y.2d 206 [obtaining property by false representations]; People v Schwartzman, 24 N.Y.2d 241, supra [obtaining property by false representation]; People v Dales, 309 N.Y. 97 [forgery]; People v Marrin, 205 N.Y. 275 [knowingly filing a false certificate]; People v Molineux, 168 N.Y. 264, 297, supra [knowingly passing counterfeit money (dicta)]).
We conclude the evidence of prior uncharged crimes was admissible to establish intent in these prosecutions.
In People v Alvino, admissibility on the false certificate charge is controlled by our holding in People v Marrin ( 205 N.Y. 275, supra). In Marrin, the defendant, an attorney, received from his client a sum of money to invest for her. He delivered in exchange a mortgage purportedly executed by one James Cahill and acknowledged before the defendant as a Commissioner of Deeds. James Cahill was fictitious and had no connection with the title to the property. To prove that fact, and that defendant had willfully and falsely certified the mortgage, the People were permitted to show that defendant had certified eight similar mortgages for the client and received money in return. The evidence was held admissible to show intent, knowledge and absence of mistake.
The evidence of prior uncharged crimes was similarly admissible on the false certificate charge in this case. Although defendant admitted that he issued an amended driver's license and that it was false, he claimed that, because he handled 50 to 60 transactions a day, he did not have the time to check the details of each request for an amended license. Moreover, his counsel attempted to establish, by cross-examination of the People's witnesses and by defendant's testimony, that the duty of checking the accuracy of the material on the application for an amended license belonged to the examiner, not the cashier, and defendant testified that there was nothing on the application papers for an amended license which would cause him, or any cashier, not to process them. In light of this defense, the evidence of prior uncharged crimes was unquestionably admissible to establish defendant's intent and the absence of mistake.
Defendant contends, however, that because the evidence was not admissible to prove intent on the bribery charge it was reversible error to admit it at all. We know of no such rule, but more to the point, we disagree with defendant's underlying premise, accepted by the dissent, and find the evidence admissible on the bribe receiving charge also.
Before a public servant may be convicted of bribe receiving, second degree, there must be proof of a corrupt agreement. The People must establish that defendant solicited, accepted or agreed to accept a benefit "upon an agreement or understanding" that his conduct would be influenced by the benefit (Penal Law former § 200.10; see also, People v Charles, 61 N.Y.2d 321). Thus, it was not enough for the People to prove defendant issued a false certificate to Falto and that he received $100 from him. The essence of the crime was not the issuing of the license or the receipt of the money; it was the doing of one in exchange for the other. Thus, defendant's mental state was directly in issue because the People had to establish that defendant knew at the time he issued the license that he was doing so in exchange for a bribe — that he later took the money knowing it was paid for that purpose. The point is illustrated by comparing bribe receiving, which involves accepting a reward in exchange for performing an official act, with the lesser offense of receiving a reward for official misconduct (Penal Law § 200.25) which involves accepting a reward for past official misconduct. Reward receiving is criminal although the misconduct occurs without any understanding that it will be rewarded later. Thus, unless the People proved a corrupt bargain existed at the time defendant issued the false certificate to Falto, he could be guilty at most of receiving a reward in violation of section 200.25. Moreover, even if the jury believed Falto, it might, in the absence of proof of defendant's mental state when he issued the license, find him guilty of the lesser offense of receiving a reward. Thus, evidence showing that defendant had issued false documents for Falto in the past helped to prove that the two men made their bargain when Falto first approached defendant and asked, "Charlie, can I get this one done here." It helped to prove that at the very same time that defendant issued the amended license, he was motivated to do so by knowledge that he would subsequently receive a monetary award of $100. The case is thus distinguishable from the crime of bribe giving, cited by the dissent, in which the act of giving money to a certain public official was conclusive of the criminal intent and proof of similar unrelated bribes to other officials had no probative value (see, People v Sharp, 107 N.Y. 427). Accordingly, the People were properly permitted to offer proof of similar crimes not to prove that defendant accepted the money but to prove the operation of his mind at the time he issued the false license.
Finally, it is immaterial that the People could establish a prima facie case without the disputed evidence. They were not bound to stop after presenting minimum evidence but could go on and present all the admissible evidence available to them, regardless of the trial strategy defendant adopted (see, People v Marrin, 205 N.Y. 275, 280, supra).
BIn People v Hernandez, the evidence was legally admissible to prove defendant's intent. This was plainly so with respect to the charge of possession with intent to sell and became so on the sale count of the indictment after defendant testified.
Evidence of uncharged crimes was legally admissible on the People's case to prove that defendant possessed drugs because defendant's possession of the drugs, standing alone, did not provide a clear indication of whether he held the drugs for sale or for his own use. The People normally might rest on the inference available, from defendant's possession of such a substantial quantity of drugs, that he intended to sell them. They were not required to do so, however, and evidence of prior uncharged crimes was admissible to show the necessary mental state required for the crime.
The evidence became admissible on the sale count, on rebuttal, when defendant went beyond denying he sold cocaine on the day in question, stated that he never sold drugs and then supported his claim with bizarre testimony designed to convince the jury of his innocence. Faced with the strong likelihood that the jury would infer from the evidence, and particularly his possession of 21 glassines, that he was a seller of cocaine, defendant took the stand and painted himself as a hapless addict and petty thief. To construct this image, he testified to those parts of his criminal record, involving larceny and possession of narcotics, that would comport with it but he emphatically denied that he was a drug seller. He insisted that he possessed the 21 glassines of cocaine only to feed his own habit and he supported this claim by asserting that he was consuming 25 to 35 "nickel" bags of cocaine per day, a figure one witness testified was 5 to 10 times the average user's daily consumption. He maintained that he could consume the 21 bags found in his possession at the time of his arrest in one hour. The implication of this testimony was that defendant's background was wholly inconsistent with his having sold narcotics in this instance and it was plainly material evidence in contradiction of the charges against him.
Thus, the record presents a situation similar to that in People v Schwartzman ( 24 N.Y.2d 241, supra) in which defendant, on trial for fraudulently selling an account receivable, admitted the transaction during his direct testimony but denied any fraudulent intent. On cross-examination, the prosecutor confronted the defendant with numerous uncharged instances of similar misconduct and, when the defendant denied one of those instances, introduced documentary evidence to prove it. We rejected the defendant's claim that the prosecutor's cross-examination and introduction of documents on rebuttal constituted an impermissible use of extrinsic evidence on collateral issues. Rather, we held that the defendant's prior fraudulent acts were admissible under the rule of People v Molineux ( 168 N.Y. 264, supra) to establish his intent in the transaction on trial and also because the witness had testified on a material matter, presenting "a novel and unexpected explanation", which the People were entitled to rebut ( 24 N.Y.2d, at 250, supra). People v Crandall ( 67 N.Y.2d 111, supra), on which the majority at the Appellate Division relied, is not to the contrary. Crandall was charged only with criminal sale of a controlled substance. Testifying in his own defense, he claimed that he was the victim of a police frame-up. Because of this claim, the trial court permitted the People to submit evidence of prior uncharged crimes on rebuttal. In most cases involving criminal sale of drugs, intent is readily inferable from the sale itself and evidence of prior uncharged crimes is neither necessary nor permissible to establish it (cf., People v Jackson, 39 N.Y.2d 64, supra; People v Bristow, 106 A.D.2d 510, supra). Accordingly, we found in Crandall that notwithstanding defendant's claim that he had been framed, the evidence was not properly received either as evidence of intent or as rebuttal evidence (id., at 118-119). Although Crandall had introduced a new consideration into the case and tried to prove it, the facts which he sought to prove had nothing to do with selling drugs. Thus, refutation of Crandall's frame-up claim lay in proof that his story was false and that the officers' motives in arresting him were proper. The People's evidence of his prior uncharged drug sales did not contradict or disprove Crandall's frame-up story and it could serve no purpose except to show he was predisposed to sell drugs. Accordingly, we held the reception of evidence of uncharged crimes constituted reversible error. In this case, however, defendant did not merely rest on his claim that he was not guilty of selling drugs; he testified to facts in the nature of confession and avoidance, admitting the lesser crime of possessing drugs but denying the greater crime of selling them (cf., People v Calvano, 30 N.Y.2d 199 [entrapment]). By doing so, he reframed the dispute before the court and affirmatively attempted to convince the jury of his innocence not just in this instance but because his entire history was inconsistent with guilt. The People were entitled to rebut that testimony by evidence of prior crimes suggesting otherwise.
Accordingly, we hold that in both Alvino and Hernandez the evidence of prior uncharged crimes was generally admissible to prove intent, and that balancing the probative value of the evidence against its potential prejudicial effect was a matter to be determined by the trial court in each case in the sound exercise of its discretion. Although the courts below could have found the evidence in the Alvino case prejudicial and of questionable probative value because Falto, the same witness whose credibility was crucial to the jury's acceptance of the underlying charges, was its source, we find no abuse of discretion in the court's reception of the evidence in either case.
Finally, we conclude in People v Hernandez that the court properly exercised its discretion in admitting the evidence of prior uncharged crimes during rebuttal. The general rule is that a party may not introduce extrinsic evidence on a collateral matter solely to impeach credibility (People v Harris, 57 N.Y.2d 335, 345, cert denied 460 U.S. 1047; People v Ventimiglia, 52 N.Y.2d 350, supra; People v Schwartzman, 24 N.Y.2d 241, 246, supra). The purpose of this rule is judicial economy, to prevent needless multiplication of issues in a case, and to insure that the jury is not confused with irrelevant evidence. Rebuttal evidence, however, is not merely evidence which contradicts defendant's evidence and corroborates that of the People. Rebuttal evidence is evidence which overcomes some affirmative fact which defendant has tried to prove (see, People v Crandall, supra, at 118; People v Harris, supra, at 345). Thus, although the evidence in dispute here could have been offered during the People's direct case on the possession with intent to sell charge, and perhaps it should have been, the trial court was authorized to vary the order of proof (see, CPL 260.30) and it properly exercised its discretion to admit the evidence on rebuttal after defendant testified.
Accordingly, the order of the Appellate Division in People v Alvino is affirmed; the order of the Appellate Division in People v Hernandez is reversed, the judgment of Supreme Court, New York County, reinstated and the matter remitted to the Appellate Division for a review of the facts.
In People v Alvino: Order affirmed.
Chief Judge WACHTLER and Judges ALEXANDER and BELLACOSA concur with Judge SIMONS; Judge HANCOCK, JR., dissents and votes to reverse in a separate opinion in which Judges KAYE and TITONE concur.
In People v Hernandez: Order reversed, judgment of Supreme Court, New York County, reinstated, and case remitted to the Appellate Division, First Department, for review of the facts.
Chief Judge WACHTLER and Judges KAYE, ALEXANDER and BELLACOSA concur with Judge SIMONS; Judge HANCOCK, JR., dissents in part and votes to modify in a separate opinion in which Judge TITONE concurs.
A public official is charged with receiving a bribe in exchange for performing an illicit act. His defense is a denial. He raises no issue concerning mistaken or innocent receipt of the money or lack of intent. He swears that he never received any money and that the charge against him is based on manufactured evidence. May the People, for the purpose of establishing defendant's guilt of the crime, attempt to show, as part of their direct case, that on 15 prior occasions he did exactly the same thing? The majority says that they may. Therein lies the clear-cut issue which divides this court.
If there is one principle that is by now firmly embedded in the law it is this: that a defendant cannot be convicted of a crime because he committed the same crime before. There is no better statement of the rule than that set forth in People v Katz ( 209 N.Y. 311, 328), a case relied on by the majority: "The general rule is rooted in the principle that a man may not be convicted of one crime simply because he may be shown guilty of another when there is no connection between the two. Simple proof showing that A. shot B. at one time and place throws no light upon the charge that A. poisoned C. at another time and place. In either of these cases guilty knowledge or intent is inferable from the nature and surroundings of each act, and each must be judged on its own circumstances". Nor is there a clearer illustration of circumstances, where, unlike the case here, intent was placed in issue and prior crimes evidence was properly admitted than People v Katz (supra). There, defendant and several others were charged with participating in a conspiracy to commit larceny. Defendant claimed to have been drawn into the scheme without any criminal knowledge or purpose on his part. In holding prior crimes evidence admissible to establish defendant's guilty intent, we distinguished the case from the usual trial on a charge of larceny, where proof of prior larcenies would not be admitted as bearing on defendant's guilt, stating: "Although confessedly a participant in certain phases of the scheme, he asked the jury to believe that his connection with it was free from criminality, and his story was such that if the jury had found for him the verdict could not have been questioned for lack of evidence to support it. His narration of the affair, while strongly indicative of guilt, was not incompatible with innocence, and, therefore, the real issue was whether he was a guiltless scapegoat or a guilty conspirator. That is exactly the typical case in which evidence of other similar offenses may be proven" ( 209 N.Y., at 329, supra [emphasis added]).
Here, because defendant denied the transaction and expressly disclaimed any defense of mistake or innocent intent, the admission of the evidence of previous similar transactions to prove his guilt offends the general rule which has for centuries been established in Anglo-American law. Eighty-six years ago in the famous Molineux decision we summarized it: "The general rule of evidence applicable to criminal trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. (1 Bishop's New Crim. Pro. sec. 1120.) This rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt. This rule, and the reasons upon which it rests, are so familiar to every student of our law that they need be referred to for no other purpose than to point out the exceptions thereto." ( 168 N.Y. 264, 291.)
The Molineux rule is founded on a principle "not of logic, but of policy"; for although propensity for criminal behavior may cogently be argued, the law "is not blind to the peril to the innocent if character is accepted as probative of crime" (People v Zackowitz, 254 N.Y. 192, 198 [Cardozo, Ch. J.]). The so-called Molineux rule recognizes that the "`natural and inevitable tendency of the tribunal — whether judge or jury — is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge'" (id., at 198, quoting 1 Wigmore, Evidence § 194). We have consistently given effect to this principle since our earliest decisions (see, e.g., Coleman v People, 55 N.Y. 81, 91-92; People v McLaughlin, 150 N.Y. 365, 391-392; People v Grutz, 212 N.Y. 72, 76-79; People v Richardson, 222 N.Y. 103, 110-111; People v McKinney, 24 N.Y.2d 180, 185; People v Crandall, 67 N.Y.2d 111, 119).
Over defendant's objections, although both mistake or lack of intent were expressly disclaimed by defendant, the People were permitted to present testimony that on 15 prior occasions defendant did exactly what he denied doing here — accept money in return for issuing a false certificate. Admission of that evidence virtually foreclosed any possibility that the jury could believe that defendant was innocent on the alleged sixteenth occasion for which he was charged. The case is remarkably like People v Sharp ( 107 N.Y. 427), a decision quoted in Molineux, where we excluded proof of prior crimes evidence in a bribery case. There, defendant, like defendant here, did not claim that he gave the money innocently but rather that he did not give it at all. In holding proof of prior briberies inadmissible we said: "But here the very thing in dispute was whether he gave the money, and that upon a former and different occasion he had offered money with a guilty purpose to another person, could not fairly be held as relevant to that question." ( 107 N.Y., at 460-461, supra [emphasis added].) A text writer would be hard-pressed to find more compelling examples of cases calling for the application of the principle underlying the Molineux exclusionary rule than People v Sharp (supra) and the case at bar.
Defendant Alvino was accused of accepting a cash bribe for issuing a false driver's license. The case was presented and tried as a single transaction involving two interrelated and virtually simultaneous criminal acts. The sole question for the jury was whether the transaction actually occurred. The People presented evidence that it did; defendant swore that it did not. He claimed that he was being "framed" through false testimony given by a criminal cooperating with the police.
The People established a prima facie case on both the bribe-receiving and false certificate charges through tape recordings and the direct evidence of two eyewitnesses. Defendant, a cashier employed by the State Department of Motor Vehicles, regularly processed, approved and issued various permits and licenses including, specifically, amended driver's licenses — a type of document for which no license fee is charged. The chief witness for the prosecution was one Mario Falto who, by his own admission, had worked for approximately 10 years prior to his arrest in illegally obtaining various licenses and other documents by bribing Department of Motor Vehicles officials. On July 19, 1982, upon his arrest for such conduct, Falto agreed to cooperate with the District Attorney by working undercover in return for a promise that his assistance would be made known to the court at the time of his sentencing.
Falto testified that, on September 10, 1982, he gave defendant $100 in cash in return for defendant's processing and issuing an amended driver's license which contained false information inserted by Falto himself on the appropriate application form. The other eyewitness, an investigator for the District Attorney's office who was standing nearby, swore that he saw defendant accept five bills in United States currency from Falto. The People also introduced tape recordings of conversations between Falto and defendant, including one at the time of the alleged transaction when the $100 was passed and another at a subsequent time when defendant assertedly admitted having received the money. Additionally, over defendant's objections, the People were permitted as part of their case-in-chief, to present Falto's testimony concerning 15 prior transactions, never charged as crimes against defendant, in which defendant allegedly issued similar false documents to Falto, or to a "partner" of his, in return for money.
The pertinent portions of the transcript of the conversation follow:
"FALTO: Hello, Charlie. (Pause)
* * *
"FALTO: Charlie, can I get this one done here? (pause)
* * *
"FALTO: Here's a hundred, Charlie; thank you very much. Bye.
"ALVINO: Have a nice day."
The transcript of a second conversation, held later in the day on September 10, contains the following:
"FALTO: Charlie, listen * * *
"FALTO: Don't ever tell Miguel [Falto's `partner'] you did anything for me or that I * * *
"FALTO: * * * gave you the money, right?
"FALTO: Thank you."
At the Molineux hearing, the prosecutor had argued that such evidence was admissible "either as relevant to the defendant's intent or relevant to the issue of absence of mistake". Defense counsel opposed its receipt on the ground that the prejudice would far outweigh its probative value, and because defendant was specifically disclaiming any defense of mistake or lack of intent and, instead, simply denying receipt of the bribe and challenging the veracity of Falto's story. Consistent with this position, defendant's case at trial was that Falto's testimony about the charged transaction was a complete and self-serving fabrication. Defendant's own testimony was not that he had accepted Falto's money by mistake or with innocent intent, but that he never accepted money at all. Nevertheless, the court admitted Falto's testimony about the 15 uncharged transactions on the ground that it would help the jury to "discern the defendant's state of mind with respect to the transaction" for which he was charged and, thereby, to determine whether defendant's acceptance of the money was "an innocent or mistaken receipt".
Defendant testified, among other things, that he had not taken a bribe from Falto or anyone else while working at the Department of Motor Vehicles, that he had not heard Falto's statement "Here's a hundred, Charlie", and that if he had heard it his reaction would have been: "What hundred dollars?". Defendant also testified that he did not know what Falto was talking about when Falto said: "Don't ever tell Miguel [Falto's `partner'] * * * that I * * * gave you money, right?" In summation, defense counsel argued that Falto's stories about having bribed defendant were complete fabrications. He stressed that Falto had a motive to lie to avoid going to jail by implicating as many Department of Motor Vehicles employees as he could.
Evidence of uncharged crimes is admissible only if offered for some purpose other than to raise an inference that a defendant has a criminal propensity (see, People v Molineux, supra, at 291-294; see also, People v Lewis, 69 N.Y.2d 321, 325; People v Fiore, 34 N.Y.2d 81, 84; People v Schwartzman, 24 N.Y.2d 241, 247, cert denied 396 U.S. 846; People v McKinney, supra, at 184; Richardson, Evidence § 170 [Prince 10th ed]). The purpose of the rule is simply to prevent the jury from drawing the impermissible inference "that one who has sinned before has sinned again and is [therefore] guilty of the crime charged" (People v Carmack, 52 A.D.2d 264, 266, affd 44 N.Y.2d 706).
As the majority agrees, whether evidence of prior crimes may be admitted or must be barred under the Molineux rule is a question of law, not discretion. (See, People v Fiore supra, at 84; People v Grutz, supra, at 77.) Only where the evidence of prior crimes is probative of a legally relevant and material issue on the instant charge, and for that reason admissible as an exception to the general rule, is there room for the exercise of discretion. (See, People v Ventimiglia, 52 N.Y.2d 350, 359; People v Allweiss, 48 N.Y.2d 40, 47.) Where, on the other hand, the evidence proves only criminal propensity and serves no other function in demonstrating defendant's guilt of the crime charged, there is no legitimate basis for its admission. No degree of care, in assessing its value and possible prejudice and in giving cautionary instructions, can render it otherwise (see, People v Zackowitz, supra, at 197-198).
In my view, it was error to admit the evidence of uncharged crimes in this case. There was no basis for admitting it on the question of mistake. Of course, such evidence is sometimes admissible to dispel the possibility of mistake (People v Henson, 33 N.Y.2d 63, 72; People v Molineux, supra, at 300-305), but only where there is a "claim of accident or mistake on defendant's part to be negated" (People v Crandall, 67 N.Y.2d 111, 119, supra; see also, People v Henson, supra, at 71). This exception to the general Molineux rule has no application where a defendant, instead of conceding the actions alleged and seeking to excuse them as an innocent mistake, flatly denies ever doing them. The record clearly demonstrates that that is not the situation here.
Defendant never pleaded mistake. The prosecutor believed defendant might raise such a defense by claiming that he did not understand what was happening. In fact, defendant never made such a claim. Indeed, he disavowed it on the record. In the colloquy during the Molineux hearing, the prosecutor, arguing for admission of the evidence, stated to the court: "The defendant as I understand it is likely to claim that he was simply rubber stamping whatever the examiner had approved, that he didn't know why he was being paid, what he was being paid for or what was expected of him in return." (Emphasis added.)
Defense counsel, however, in opposing receipt of the evidence responded quite plainly: "Your Honor, I can say unequivocally my defense in this case has nothing to do with mistake. It is my position that the District Attorney's office is trying to convict the defendant of something which they could not by their own admission convict him of * * * The jury is only going to be given one crime. When they hear all the prejudicial evidence there is no doubt in my mind that they are going to convict Mr. Alvino regardless of the lack of proof of the instant indictment * * * Our defense is not lack of intent per se. Our defense is not mistake. Our defense is that [defendant] was framed by [Falto] in this case and it is clearly and simply that."
The majority does not, and cannot, contend that the prior crimes evidence was admissible by reason of defendant's claim that he was "framed" — i.e., that Falto's accusations were fabricated to enhance his chances for leniency. We have only recently rejected just such contention in People v Crandall ( 67 N.Y.2d 111). We made clear that where a defendant denies the criminal transaction, the fact that he embellishes his denial with an argument that he was "framed" or "set up" does not make proof of prior crimes admissible under the "mistake" or "intent" exceptions. The claim of a "frame" or "set up" is not that the defendant's acts were somehow excusable. Rather, it is that the defendant never did the acts at all and that the evidence was concocted as a part of a scheme to convict him (see, id., at 119). Hence, defendant's claim in the present case that he was framed merely underscored the critical issue — whether he received the bribe money. It did not raise questions of intent or mistake, or in any way render defendant's alleged actions equivocal.
Moreover, defendant's position throughout the trial was that he never accepted an illicit payment from Falto or anyone else — not that he had done so by innocent mistake. For him to have claimed that he had taken the $100 payment, but had done so by mistake, would have been entirely incompatible with his defense that the alleged transaction never occurred, that Falto was lying. Even assuming that it could ever make sense to claim that one misunderstood his own act of accepting a cash payment, such a contention would have been particularly farfetched here where defendant was accused of pocketing five $20 bills for issuing an amended license to which an applicant is entitled without charge.
Nor was there any basis to admit the evidence under the limited "intent" exception. That exception applies "only where the acts involved in the crimes charged are equivocal so that intention is not easily inferred from the acts alone * * * `In such cases it is recognized that "proof of intent is often unobtainable except by evidence of successive repetitions of the act."'" (People v McKinney, supra, at 184-185, quoting People v Schwartzman, supra, at 248, and People v Molineux, supra, at 298.) So, for example, in prosecutions for the passing of a single counterfeit bill, the negotiation of a forged check, or the possession or receipt of stolen property, proof of the act alone permits no inference of criminal intent or knowledge and, therefore, evidence of similar acts committed on other occasions may be admissible under the intent exception to the general rule (see, Richardson, Evidence §§ 172-176 [Prince 10th ed]). By sharp contrast in this case, there is nothing equivocal about defendant's alleged act of accepting money from Falto for issuing a free amended license while on duty with the Department of Motor Vehicles. Indeed, there can be few acts which reveal a guilty mind with such stark clarity as a public official's receipt of $100 in cash for performing a routine service which he is required by law to perform without charge. It cannot seriously be contended that the "evidence of successive similar representations [was] crucial in attempting to ascertain defendant's intention" (People v Schwartzman, supra, at 248; see also, People v McKinney, supra, at 184-185; People v Molineux, supra, at 298).
Likewise, as in People v Hernandez (decided herewith), evidence that a defendant possessed drugs, without more, does not show whether his possession was with any plans to sell. Possession itself, no matter how large the quantity, is ambiguous on that question and, for that reason alone, proof of the defendant's prior sales was admissible on the possession charge to show what he intended (see, majority opn, at 245). Contrariwise, there is nothing equivocal about actually selling drugs and, hence, the prior crimes evidence should not have been admitted under the intent exception on the sales charge.
As the dissenting Justice at the Appellate Division observed ( 122 A.D.2d, at 674-675 [Murphy, P.J., dissenting]), there was really no issue at trial as to how or why or with what intent defendant took the money. Rather, it was whether, in light of defendant's denials, he took the money at all. If the jury believed the evidence showing that defendant did take the money, the guilty inference was inescapable. The transaction could only have been a bribe for issuing the bogus license. Hence, the admission of Falto's testimony about the 15 previous transactions served only to persuade the jury that defendant had a habit or propensity for taking bribes for falsifying certificates and, for that reason, must have done the same thing again. No balancing of probative value against prejudicial effect and no framing of curative instructions, no matter how meticulous the trial court in its efforts, could bring the evidence within either the mistake or intent Molineux exception. Falto's testimony about the uncharged transactions should simply not have been permitted.
In my view, any other holding contravenes our prior decisions in closely analogous cases. In People v McKinney (supra), the People presented evidence of defendant's prior assaults to prove his intent to inflict physical injury. We disapproved admission of the evidence on the grounds that "the alleged act of defendant [was] unequivocal", his intention "may be inferred from the act itself", and "[d]efendant did not contest the element of intention in the crime charged, but rather denied that" he ever assaulted the victim ( 24 N.Y.2d, at 185, supra). Likewise, in People v Crandall (supra, at 118) we said it was improper to admit proof of prior drug transactions where "defendant flatly denie[d] ever having sold narcotics". Relying solely on defendant's denial, we held that there was no "claim of accident or mistake on defendant's part to be negated * * * no issue concerning defendant's intent, mistake or accident [to] furnish a pretext for the admission" of prior crime evidence ( 67 N.Y.2d, at 119, supra).
The Federal cases are to the same effect. Federal Rule of Evidence 404(b) (in 28 U.S.C. Appendix) is basically a restatement of our Molineux decision and, therefore, the reasoning of the Federal courts is clearly on point. In People v Benedetto ( 571 F.2d 1246 [2d Cir]), the Government introduced evidence of prior acts of bribe receiving (receipt of money in connection with official duties [ 21 U.S.C. § 622]) contending it was relevant to show defendant's knowledge and intent. Rejecting that contention the court explained that "[d]efendant did not claim that he took the money * * * innocently or mistakenly. He claimed that he did not take the money at all. Knowledge and intent, while technically at issue, were not really in dispute" (id., at 1249). Similarly, in United States v O'Connor ( 580 F.2d 38 [2d Cir]), a case involving identical bribe receiving charges, the court held prior crimes proof inadmissible on intent or mistake because "defense counsel [had] protest[ed] that there was no real issue of intent" (id., at 41). The rule common to these cases is consistent with our prior decisions and is fully applicable to the present case. Moreover, no decisions, State or Federal, have been cited by either the majority or the People, where the Molineux mistake or intent exception was held applicable in a bribe receiving case such as this one.
Federal Rule of Evidence 404 (b) (in 28 U.S.C. Appendix) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
In what appears to be the only bribe receiving case in which this court has addressed the Molineux issue (see, People v Fiore, 34 N.Y.2d 81), we held it error to admit evidence that the school board president, charged with accepting a bribe from a contractor, had previously received kickbacks from the project's architect. We found the evidence inadmissible to prove the existence of a corrupt agreement under the "common plan or scheme" exception. Significantly, in Fiore, as here, the defendant flatly denied ever receiving any payments.
On the other hand, in a closely analogous case before our court exactly 100 years ago, People v Sharp ( 107 N.Y. 427, supra), we unanimously reversed the defendant's conviction for attempted bribe giving on the ground that the admission of proof of a prior, similar bribe, admitted on the issue of criminal intent, was barred by the general rule against such evidence, deemed "elementary" even then (id., at 458). In that case as here, the People offered the evidence as probative of "a substantial element of [the] crime" — i.e., "to show the intent with which the act charged was done" and, specifically, defendant's "corrupt proposal" to a public official (id., at 436, 460). This court adamantly rejected the contention that the evidence was admissible to dispel the possibility that the defendant's giving of bribe money was innocent. We explained that, under the facts of that case, just as in this one, "the very thing in dispute" was whether the bribe money was passed at all (id., at 460). Whether defendant's actions on another occasion revealed a "guilty purpose" was irrelevant. The evidence of the prior bribe only diverted "the minds of the jurors from the real point on which their verdict [was] sought" — whether the transaction alleged ever really occurred (id., at 461).
The majority's reliance on People v Marrin ( 205 N.Y. 275) is entirely misplaced. That case differs from this one in critical respects. Indeed, that case presents a most helpful contrast by illustrating well the type of act which, because it is equivocal, does fall within a Molineux exception. In Marrin defendant was charged with willfully certifying falsely, as a Commissioner of Deeds, that a James Cahill had signed and acknowledged a mortgage. As contrasted with the case at bar, there was no question that defendant had performed the acts alleged. The only question — as in the case of the counterfeit bill or the check with the forged signature — was whether defendant had the requisite knowledge of the falsity of the certification. In explaining why proof of prior crimes was legally relevant and, therefore, not barred by the general rule, we stated: "The suggestion that evidence could not be received to show that the same man picked the pocket of the same person on several successive occasions near together, does not apply to this case, because the pickpocket knows when he steals. There can be no mistake about it, whereas here there may have been a mistake. James Cahill may not have been a myth. Some one may have assumed to be James Cahill and may have convinced the defendant that he bore that name and was in fact the mortgagor, so that while the certificate was false the defendant may not have known it was false. The People did not know how much evidence might be presented by him tending to show that he was mistaken and the way was open to the prosecution to reduce the possibility of mistake to a minimum by proving eight similar and connected transactions" ( 205 N.Y., at 281, supra [emphasis added]).
The bribe receiver, like the pickpocket referred to in the Marrin opinion, "knows when" he has taken money. His action admits of no mistake and, in the present case, defendant disavowed such a claim.
Moreover, the rule applied in Marrin — that prior crimes evidence which is admissible on some legally relevant issue may not be excluded solely because the People may establish a prima facie case without it — has no application here. The prior crimes evidence should have been excluded in this case not because it was unnecessary to establish a prima facie case, but because it was never admissible at all as coming within one of the Molineux exceptions. To hold that People v Marrin (supra) makes admissible proof which the basic Molineux rule makes legally inadmissible would vitiate the basic rule and frustrate the underlying purpose of the Molineux rule — excluding prior crimes proof for reasons of policy because of its inherently prejudicial nature unless the proof comes within one of the specified exceptions (see, People v Zackowitz, supra, at 197-198; People v Molineux, supra, at 291-294; Richardson, Evidence § 170 [Prince 10th ed]).
Finally, questions of mistake or lack of intent which might render the uncharged crimes evidence admissible cannot now be injected into the case by artificially treating the single transaction as though it were two isolated events: an issuance of a false certificate and a separate receipt of a bribe. The alleged transaction was never treated as such at the trial and ought not to be so treated now for the purpose of uncovering issues of intent and knowledge not otherwise in the case. This case was presented to the jury, by both the prosecutor and the court, as a unified transaction involving the alleged acceptance of $100 in exchange for the issuance of a false driver's license. While it is possible that proof of prior crimes could be offered and admitted on some or all of the individual counts in certain multicounts trials, that approach can have no application here. The prior crimes evidence was offered and received as bearing on a single transaction embracing both crimes, and no indication was given by the court in its various instructions to the jury that the prior crimes evidence should be considered with respect to only one charge, or to both charges viewed separately. Rather, the court consistently linked the bribery and false certificate charges and referred to a single state of mind. Indeed, the jury was specifically and repeatedly advised that the evidence should be used to determine defendant's state of mind with respect to "the transaction", "the act", "the only act", "this crime", "it must be proved" (emphasis added).
Indeed, the court repeatedly linked the bribery and false certificate charges and referred to a single state of mind in its various instructions to the jury on the prior crimes evidence throughout the trial. In the preliminary instructions the Judge stated: "[S]uch evidence will be received only for the purpose of giving the jury an opportunity to discern the defendant's state of mind with respect to the transaction on September 10 and the mere fact that a person may or may not have committed some other act on another occasion is no proof whatever that he committed the act he's accused of and the only act he's accused of in this indictment. More will be said about this later" (emphasis added).
Just prior to the introduction of the evidence he reminded the jury: "I want you to understand his state of mind in receiving the money, whether it was an innocent or mistaken receipt or whether a corrupt receipt as part of the corrupt agreement goes to what the defendant's state of mind was at the time the crimes alleged in the indictment are purported to have occurred" (emphasis added).
Just after the evidence was presented he reminded them again: "A jury may not find a person guilty of this crime because they believe he may have committed other crimes. It's this crime, September 10th, 1982, which must be proved beyond a reasonable doubt and it must be proved upon its own facts that something happened on September 10th, 1982, which the law defines as a crime" (emphasis added).
In the final charge to the jury, the Judge said, among other things: "If such events [the uncharged briberies] have been proved beyond a reasonable doubt, then you may consider whether or not they demonstrate that the defendant's intention [or] state of mind, what they were on the day he was purported to have accepted the bribe and issued the false certificate" (emphasis added).
The People's case was that defendant accepted a bribe in return for his issuing a false certificate. The proof was of one transaction. The critical issue was whether defendant accepted the $100 payment. Once established, that fact was every bit as inculpatory in proving the requisite criminal intent on the false certificate charge as on the bribe receiving. The mens rea evinced by mere acceptance of the money pervaded the entire transaction, and neither the People nor the trial court attempted to parse it between the two crimes or assign it to one but not the other. It is inconceivable, therefore, that the jury could have concluded that the defendant had the requisite intent on one half of the transaction, but not the other — i.e., that defendant accepted the illegal payment but not for issuing a certificate he knew to be false. Thus, evidence of the 15 virtually identical, prior transactions was equally damaging on the false certificate charge and the bribe receiving. It foreclosed any real possibility that defendant's guilt or innocence on either charge could be fairly judged by the jury on the relevant evidence.
Accordingly, I would reverse the order of the Appellate Division, vacate defendant's conviction and order a new trial.
People v Hernandez
I disagree with the majority to the extent that they hold that the prior crimes evidence was admissible on the criminal sale charge. The evidence was clearly admissible on the charge of criminal possession with intent to sell because mere possession of a controlled substance, regardless of the quantity, is equivocal on the question of intention to sell. Moreover, defendant specifically denied that he ever had such intention, and, therefore, placed the question of intention directly into issue. For both reasons, the prior crimes evidence fell within the Molineux intent exception on the possession charge. The situation is quite the opposite, however, on the sales charge.
In the ordinary case, the act of exchanging drugs for money cannot be said to be equivocal; the act itself reveals the seller's guilty intent. Therefore, where, as here, the defendant has raised no claim such as entrapment or agency which would put his intent into issue, the proof of prior sales is not admissible under the intent exception. (See, People v Crandall, supra, at 118.) Nor was such proof admissible under any other cognizable theory. The majority's attempt to articulate a justification merely amounts to permitting the People to rebut defendant's self-characterization as a nonseller of drugs with proof of uncharged incidents in which he sold in the past to show that he must have sold again. This proof added nothing to the evidence that he sold drugs as charged, but only that he had a criminal propensity for doing so. This is precisely the proof intended to be precluded by the Molineux rule, and it is not permitted by any other rule governing the use of character evidence relied on by either the People or the majority (cf., CPL 60.40 ["any previous conviction"]; Richardson, Evidence § 152 [Prince 10th ed] [reputation]).
Accordingly, I would modify the order of the Appellate Division by reinstating only defendant's conviction for criminal possession in the third degree.