AD4 orders dated June 19, 2015 affirming judgment of conviction and denying 440 motion. Decision below: 129 AD3d 1592, 12 NYS3d 446. Lippman, Ch. J., granted leave December 29, 2015.

ISSUES PRESENTED: (1) Whether the IAC 440.10 motion should have been denied without a hearing because the trial counsel was deceased. (2) Whether counsel was ineffective because he failed to utilize prior inconsistent statements on cross, and failed to request a limiting instruction on Molineux evidence. (3) Whether the trial court improperly allowed evidence of defendant’s prior uncharged sexual abuse of the victim, to establish intent and motive.

Held: The victim’s testimony in this sex abuse case, about a prior uncharged sexual abuse against her by the defendant, could not be admitted to prove intent or motive under Molineux, nor was it admissible as “necessary background information.” The Court instead found the evidence improperly established propensity, and to the extent it was probative, it was unduly prejudicial. 

 

CAL Observes: This was probably one of Judge Abdus-Salaam’s last decisions, and a welcome one for defendants. The Court made the common-sense finding that the crime itself suggested both the motive and intent of sexual gratification.  Moreover, the Court rejected the prosecution’s attempt to bring in what is really propensity evidence under the guise of  “necessary background information,” and rejected the evidence, on balance, as more prejudicial than probative, even if technically relevant. 

 

This was a consolidated direct and CPL §440.10 appeal. Because the Court decided the case based upon the direct appeal Molineux issue, it left for another day the issue of whether it was error to deny a CPL §440.10 without a hearing because the trial attorney charged with ineffective assistance of counsel is now deceased.