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County Court, Sullivan CountyMar 10, 2008
2008 N.Y. Slip Op. 50447 (N.Y. Misc. 2008)


Decided March 10, 2008.

Michael F. McGuire, Esq., Ferndale, New York, Attorney for Defendant.

Hon. Stephen F. Lungen, Sullivan County District Attorney, Sullivan County Courthouse, Monticello, NY, By: James R. Farrell, Esq., ADA, of counsel Attorney for the People.

This matter comes on by motions in limine of the People to grant certain molineux evidence and to preclude the defendant from introducing evidence relating to the victim making prior sexual complaints, in the retrial of the defendant following a jury disagreement on Counts IV, V and VI which, in sum and substance, charge one act of touching the victim's breast .

The defendant was acquitted by a jury of Counts I, II and II, charging one act of oral sodomy of the victim's mouth to defendant's penis. Both the sodomy (Counts I, II and III) and the sexual abuse (Counts IV, V, and VI) occurred at the same time and location.

The People submit affirmations in support of their Molineux application and an affirmation in support of their motion to preclude defense evidence.

The defendant submits an affirmation in opposition to cover both the Molineux application and the motion to preclude.

On October 3, 2007 a Sullivan County Grand Jury returned a six count Indictment #264-07 charging the defendant with three counts of a criminal sexual act and three counts of sexual abuse for an incident occurring on June 4, 2007 at the home of the defendant and victim in the Village of Liberty.

The alleged victim, Kaitlin R., is fifteen years old and suffers from mental and physical disabilities as a result of a severe life threatening birth defect. The defendant is the victim's Uncle and resides with his wife and daughter in the same home in a separate apartment.

The allegations of the Indictment specifically charge the defendant as follows:

Count I-criminal sexual act in the first degree-oral sex by forcible compulsion [PL 130.50(1)];

Count II-criminal sexual act in the third degree-oral sex by a person over age twenty-one years with a person less than fifteen years old [PL 130.40(2)];

Count III-criminal sexual act in the third degree-oral sex with a mentally disabled female [PL 130.40(1)];

Count IV-sexual abuse in the first degree-mouth to breast of female by forcible compulsion [PL 130.65(1)];

Count V-sexual abuse in the third degree-mouth to breast of female without consent (PL 130.55);

Count VI-sexual abuse in the second degree-mouth to breast of mentally disabled female [PL 130.60(1)].

A jury trial commenced on February 4, 2008 and concluded on February 7, 2008 wherein the trial jury acquitted the defendant on Counts I, II and III and were hopelessly in disagreement on Counts IV, V and VI. A mistrial was declared and the remaining counts were immediately scheduled for retrial.


The People now seek to introduce, in their case in chief, two pieces of evidence under Molineux.

First, the People seek to introduce evidence of what now is, by jury verdict, a non-criminal act, i.e., the victim's testimony that she was subjected to a forcible act when the defendant pushed her head during the criminal sexual act on June 4, 2007 as alleged in Count I. The People concede that they do not seek to reiterate the testimony regarding the oral sodomy but only use the testimony of the victim regarding the defendant forcibly grabbing the child's head.

Notwithstanding that the defendant was acquitted on all of the theories, including forcible compulsion, underage and mental disability, of the criminal sexual act in Counts I, II and III, the People seek to introduce testimony from the victim regarding an act of forcible compulsion act to establish the forcible compulsion common to the retrial on Count IV involving the forcible compulsion of touching the child's breast.

The People argue that the forcible compulsion in the acquitted count I (defendant's hand behind the victim's head) and the forcible compulsion under count IV in this retrial (defendant removing the victim's sweatshirt and bra and touching the child's breast) are the same and that the act of forcible compulsion in count I, in and of itself, notwithstanding the jury acquittal for the act of oral sodomy, is relevant and probative to count IV to prove, as the Prosecution argues, that "this defendant subjected a weak, vulnerable physically and mentally disabled child to evil acts of sexual abuse" by forcibly touching her breast.

This argument can be analogized to a bouquet of flowers. Although many flowers make up a bouquet not all of the flowers are of the same variety. The bouquet may be made of roses, orchids, mums or tulips that total the sum of the flowers.

Though all are flowers and there are differences that set them apart from each other, they constitute a bouquet. The words "forcible compulsion" used in both count I and count IV does not necessarily mean that there is only one type or variety of forcible compulsion. Just like the bouquet of flowers, "forcible compulsion" may differ in a variety of ways. Not all "forcible compulsion" is the same or that one type of "forcible compulsion" in one crime is relevant to the "forcible compulsion" in another crime.

It is important to note that the force in Count IV is not a physical force as the grabbing in count I but a passive physical force inherent in the size, age and gender difference between the defendant and the victim in the defendant allegedly removing the victim's shirt and bra. C.F., People v Sehn , 295 AD2d 749 (3rd Dept., 2002; People v Bailey , 252 AD2d 815 (3rd Dept, 1998).

In the second Molineux application, the People seek to introduce testimony of defendant's inappropriate touching of his twelve year old daughter in 2006 wherein he was "tickling" her on the inner most part of her thigh which made her feel very uncomfortable, causing her to notify her mother's sister who, in turn, told her mother, the defendant's wife. The mother thereupon confronted her husband, the defendant herein, and then it (the tickling) stopped.

Judy R., the mother of the victim in this case, is the sister of the defendant's daughter's mother.

Courts in the State of New York have held that Molineux is applicable to prior bad acts or prior uncharged crimes to establish motive [ People Mees , 47 NY2d 998 (1979)]; intent [ People v Bayne , 82 NY2d 673 (1993)]; guilty knowledge [ People v Marrin , 205 NY 275 (1912)]; absence of accident or mistake [ People v Henson , 33 NY2d 63 (1973)]; and common scheme or identity, [ People v Schwartzman , 24 NY2d 241(1968)] though these categories are not exclusive, People v Santarelli , 49 NY2d 241 (1980).

It is also relevant to the People's application that prior convictions for charged crimes or uncharged crimes or bad acts may be admissible, in the discretion of the Trial Judge, for cross-examination purposes after the defendant takes the witness stand under People v Sandoval , 34 NY2d 371 (1974) and People v Ventimiglia , 52 NY2d 350 (1981).

There are two basic differences between Sandoval evidence and Molineux evidence. First, Sandoval evidence relates only to credibility by prior convictions of charged crimes, or under Ventimiglia for prior uncharged crimes or bad acts, and Molineux evidence may relate to prior charged or uncharged crimes or prior bad acts. Second, Sandoval evidence may be used, in the discretion of the Trial Judge, in the People's cross examination of the defendant if he takes the witness stand and Molineux evidence may be used, in the discretion of the Trial Judge, in the People's case in chief.

Here, the People only seek to use, in their case in chief, evidence of force applied by the defendant to the victim's head in a downward motion from the crime for which he was acquitted in the first trial. In other words, the People seek to use evidence that is not a charged or uncharged crime since the prior charged crimes were acquittals, none the less, it is a bad act of pushing a child's head in a forceful and inappropriate manner.

The People rely on three cases from other states to justify using evidence from a prior criminal conviction at a subsequent trial in certain specific instances; People v Kennedy , 60 Ill App 3d 947; Scott v State , 190 Ga App 359 (1989); Piesik v Alaska , 572 P2d 94 (1977).

All three of the above cases are inapplicable to the facts of the instant matter.

In Scott v State , supra, the Trial Court, in a trespass trial, allowed limited testimony regarding defendant's knowledge that he was prohibited from being in the victim's apartment as it was a specific element of the crime to be proven even though that same knowledge was part of a prior charge of which he was acquitted.

In Piesik v Alaska , supra the defendant was charged in a three count indictment with assault, lewd and lascivious acts against a child and sodomy. The jury found the defendant guilty of the assault and the lewd and lascivious acts but not guilty of sodomy. The Court thereafter declared a mistrial and the defendant was retried on the assault and the lewd and lascivious acts. At retrial, the Trial Court allowed limited testimony regarding a common element, in both the lewd and lascivious acts charge and the sodomy of which the defendant was acquitted.

In People v Kennedy , supra the trial Court, in a rape trial allowed, over the objection of the defendant, evidence of deviate sexual conduct even though the defendant had been previously acquitted of that charge. The Trial Court allowed the testimony only to the extent that the jury may have based it's acquittal on some other issue or element of the crime than allow present in the retrial.

In the instant matter, there are no common elements between count I, which the defendant was acquitted of, and count IV, which is the subject of the retrial as in Piesik v Alaska , supra or Scott v State , supra. Trial Court's reasoning in People v Kennedy , supra, that the jury may have acquitted the defendant on a some issue or element other than was present on the retrial is misplaced herein. The basis of the prior acquittal in the instant matter is easily recognized and not in doubt in that there was no sodomy by either force, age or mental disability.

Alaska precedent notwithstanding, in New York it is reversible error when the People, having knowledge that the defendant has been previously acquitted of a crime, nonetheless, cross-examines the defendant concerning the charges for which he was acquitted. People v Schwartzman , 24 NY2d 241 (1969).

The People's argument does not support this Court expanding Sandoval or Molineux to allow some evidence from an acquitted charge regarding other charges against the defendant of the same victim on the same day. First, the out of state cases are not controlling to this Court. Second, none of the three out of state cases fit the distinct fact pattern of this instant matter. Finally, the New York Court of Appeals in People v Schwartzman , supra held that it is reversible error to use evidence from a defendant's acquittal on prior charged crimes for mere cross examination purposes and this holding has not been modified or changed by any court in New York.

The People's Molineux application to use evidence or testimony from the charges for which the defendant was acquitted must be denied.

Next, the People seek to use the defendant's inappropriate touching of his twelve year old daughter in 2006, wherein he was "touching" her inner thigh, close to her vagina, which made her uncomfortable, in their case in chief as a prior uncharged crime or a prior bad act to negate the defendant's claim to the police of mistake or accident .

In a fully mirandized oral statement, the defendant denied touching the child's breast but claimed he might have sprayed saliva from his mouth or sneezed on the child's bare breast. At the first trial the defendant testified to that effect and called a witness to show that he was suffering a bout of hay fever and had red, itchy eyes and severe sneezing.

It is well settled that the nature and extent of introduction of evidence, by either direct or cross examination, rests in the discretion of the Trial Judge, See, People v Schwartzman , supra, who must weigh the probative value of the evidence against the danger of prejudice against the defendant. People v Alvino , 71 NY2d 233 (1987); People v Ely , 68 NY2d 520 (1986).

In the original trial the People made an application, during trial, to introduce testimony from the defendant's daughter of the touching of the private area of her inner thigh and was the subject of this Trial Court conducting a full evidentiary hearing out of the presence of the jury. At the hearing this Court found the touching of the defendant's daughter to be credible and worthy of belief but, out of an abundance of caution, denied the People's application.

The People, now, prior to the second trial, renew their application with the hindsight of the defendant's trial testimony and witness in support of his claim of mistake or accident, i.e., that he may have sneezed or dribbled on his niece's breast when he assisted her in dressing in the bathroom, to negate the defendant offering a claim of mistake or accident for the DNA evidence obtained from the victim's breast . The defendant made this claim after the police took a DNA sample of his saliva and then interviewed him. Although this evidence is powerful and similar in nature to the instant charge of a sexual touching it, none the less, falls within the holding of Molineux.

In fact, the only area tested by the police where trace DNA evidence was found was confined to the nipple of the breast only.

The People's application to use the 2006 "touching" incident in their case in chief under Molineux is granted to negate the mistake or accident claim the defendant admitted to the police.

This Court is satisfied that the evidence is relevant and material to the People's burden of proof and that the probative value clearly outweighs the danger of undue prejudice against the defendant.

Last, the People also renew their application for a ruling that the defendant be precluded from testifying or seeking to submit other evidence that the victim herein made prior sexual complaints regarding the defendant and others.

This Court, after a full evidentiary hearing, during the first trial, out of the presence of the jury, granted said preclusion in the first trial and said ruling continues in the instant trial with or without the consent of the defense. .

Based upon the above, it is

ORDERED, that the People's application to use some evidence of physical force from the acquittal in his first trial under the Indictment #264-07 is denied, and it is further ORDERED, that the People's application to use the 2006 "touching" incident in their case in chief is granted with appropriate limiting jury instructions under Molineux, and it is further

ORDERED, that the defense is precluded from eliciting any evidence that the victim herein made prior complaints of a sexual nature.

This shall constitute the Decision and Order of this Court.