AD2 order dated November 29, 2011, affirming judgment of conviction. Decision below: 89 A.D.3d 1112, 933 N.Y.S.2d 598. Smith, J., granted June 28, 2012.

ISSUE PRESENTED: Whether the trial court properly permitted the prosecution to introduce a 911 recording recording reporting that a person matching the defendant’s description committed an uncharged robbery – as "background information." (Assigned counsel: Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10^th Floor, NYC 10006.)

Issue before the Court: Whether, where the defendant was charged solely with gun possession, the trial court abused its discretion in admitting, with limiting instructions, the 911 call that was the basis for the officer’s stop of the defendant, which reported a gunpoint robbery.

Held: In a 4-3 decision, the Court upheld the admission of the 911 call. Reviewing the law pertaining to Molineux and the admission of "necessary background evidence," the Court held that the probative value exceeded any prejudice because of the need to explain the police’s unusually aggressive conduct toward the defendant after stopping him, and its relevance to the officer’s credibility. The court’s forceful and timely limiting instructions ameliorated any potential for prejudice.

CAL Observes: This is the sort of case that we see (and lose) over and over again in the Appellate Division. The issue involved, however, is not pedestrian, as the level of analysis by the majority, and certainly Judge Rivera’s lengthy and detailed dissent, shows. The admission of a so-called "background" evidence can profoundly affect the fairness of the trial. While Morris ultimately lost, defense attorneys dealing with similar issues can look for distinctions with Morris — for example, the majority stressed the need to explain the police’s aggressive conduct and the court’s repeated and forceful limiting instructions. Further, while Judge Lippman joined in Judge Rivera’s dissent, Judge Smith dissented on a separate theory - that the 911 tape was hearsay which the jury could never have considered for any purported non-hearsay purpose. Thus, the opinion also illustrates the different angles available to approach this sort of case.