71 N.Y.2d 233 | NY | 1987
Lead Opinion
OPINION OF THE COURT
These two unrelated appeals concern the admissibility, under the rule in People v Molineux (168 NY 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.
I
A
Defendant Alvino was a cashier employed by the New York
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 NY2d 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 ex
B
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
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 NY2d 111, 118; People v Pavao, 59 NY2d 282, 288; People v Schwartzman, 24 NY2d 241, 245, cert denied 396 US 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 NY2d 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
II
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 NY2d 321, 325, citing Richardson, Evidence § 4, at 2 [Prince 10th ed], quoting Uniform Rules of Evidence, rule 1 [2]). 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 NY2d 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 NY2d 241, 250; People v Allweiss, supra; People v Carmack, 44 NY2d 706, affg 52 AD2d 264, 265-266, 53 AD2d 1017). In People v Molineux (168 NY 264, 293, supra), we stated that evidence of unc
Whether evidence of prior crimes may be admitted under the Molineux rule is a question of law, not discretion (see, People v Fiore, 34 NY2d 81, 84; People v Grutz, 212 NY 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 NY2d 111, supra [criminal sale of drugs]; but see, People v Jackson, 39 NY2d 64, supra; People v Bristow, 106 AD2d 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 NY 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
m
We conclude the evidence of prior uncharged crimes was admissible to establish intent in these prosecutions.
A
In People v Alvino, admissibility on the false certificate charge is controlled by our holding in People v Marrin (205 NY 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
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 NY2d 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
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 NY 275, 280, supra).
B
In 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
Thus, the record presents a situation similar to that in People v Schwartzman (24 NY2d 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 NY 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 NY2d, at 250, supra).
People v Crandall (67 NY2d 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 NY2d 64, supra; People v Bristow, 106 AD2d 510, supra).
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.
IV
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 Har
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.
Dissenting Opinion
(dissenting in People v Alvino; dissenting in part in People v Hernandez). 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 NY 311, 328), a case relied on by the majority: "Tibe 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
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 Grim. 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
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 NY 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 NY 81, 91-92; People v McLaughlin, 150 NY 365, 391-392; People v Grutz, 212 NY 72, 76-79; People v Richardson, 222 NY 103, 110-111; People v McKinney, 24 NY2d 180, 185; People v Crandall, 67 NY2d 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 NY 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 NY, 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
I
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
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.
II
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 NY2d 321, 325; People v Fiore, 34 NY2d 81, 84; People v Schwartzman, 24 NY2d 241, 247, cert denied 396 US 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 AD2d 264, 266, affd 44 NY2d 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 NY2d 350, 359; People v Allweiss, 48 NY2d 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 NY2d 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 NY2d 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
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. ”
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,
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 * * * Tn 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]).
Ill
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 "[defendant did not contest the element of intention in the crime charged, but rather denied that” he ever assaulted the victim (24 NY2d, 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 NY2d, at 119, supra).
The Federal cases are to the same effect. Federal Rule of Evidence 404 (b) (in 28 USC Appendix) is basically a restatement of our Molineux decision
On the other hand, in a closely analogous case before our court exactly 100 years ago, People v Sharp (107 NY 427 [1887], 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
The majority’s reliance on People v Marrin (205 NY 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 NY, 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
IV
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
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 inno
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 [2] ["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.
In People v Alvino: Order affirmed.
Chief Judge Wachtler and Judges Alexander and Bellacosa concur with Judge Simons; Judge Hancock, Jr., dissents
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.
. 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 * * *
"alvino: Yeah.
"falto: Don’t ever tell Miguel [Falto’s 'partner’] you did anything for me or that I * * *
"alvino: Okay.
"falto: * * * gave you the money, right?
"alvino: Okay.
"falto: Thank you.”
. 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.
. 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 NY2d 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.
. 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.
. Federal Rule of Evidence 404 (b) (in 28 USC Appendix) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the
. In what appears to be the only bribe receiving case in which this court has addressed the Molineux issue (see, People v Fiore, 34 NY2d 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.
. 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).