People v. Johnson

114 A.D.2d 210, 498 N.Y.S.2d 804, 1986 N.Y. App. Div. LEXIS 49971
CourtAppellate Division of the Supreme Court of the State of New York
DecidedFebruary 20, 1986
StatusPublished
Cited by12 cases

This text of 114 A.D.2d 210 (People v. Johnson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Johnson, 114 A.D.2d 210, 498 N.Y.S.2d 804, 1986 N.Y. App. Div. LEXIS 49971 (N.Y. Ct. App. 1986).

Opinion

OPINION OF THE COURT

Rosenberger, J.

Wilson Johnson appeals from a judgment convicting him, following a jury trial, of robbery in the first degree and burglary in the first degree, rendered in the Supreme Court, Bronx County, on May 27, 1982. He is presently incarcerated, serving two concurrent sentences of imprisonment of from 6 to 18 years. We find the evidence less than overwhelming and the several trial errors to require reversal and a new trial.

According to the complainant, Frank Mendez, at about 1:30 a.m. on October 20, 1981, he heard a knock at the door of his home located at 772 Union Avenue in The Bronx, lifted the curtain on the window and saw Edwin Andujar, the superintendent in one of the four buildings he owned, standing outside with Fernando Rodriguez and the defendant. Upon his request that they return the next day, the trio left. Shortly thereafter, Mendez heard an upstairs window break, grabbed a crowbar, went upstairs, and confronted Andujar and two other intruders. The defendant allegedly knocked the crowbar out of his hands, put a knife to his throat, dragged him downstairs, and removed approximately $350 from his pockets. He then allegedly threatened, in Spanish, to take Mendez upstairs and kill him unless he told him where there was more money. At some point the defendant allegedly gave the knife to Rodriguez. The perpetrators took á television set, shirts, a watch and a tape recorder, tied Mendez up, ripped out his phone wire, and fled. The crime transpired in about 10 or 15 minutes.

[212]*212The defendant’s principal argument for reversal concerns the admission of testimony that he had stolen money from Mendez on about 10 prior occasions within eight months of the robbery and burglary at issue. He claims that this "prior crimes” evidence was neither probative of identity, nor of a common scheme under People v Molineux (168 NY 264, 305-306, 313-316 [1901]). Although the minutes of the pretrial hearing at which Criminal Term (Goldfluss, J.), determined that the "prior .crimes” evidence was admissible have apparently been lost or misplaced, in our view the ruling was an abuse of discretion. The 10 uncharged larcenies were allegedly committed, usually after Mendez returned from collecting rents, when Andujar would hold him while defendant emptied his pockets. Their threats to burn Mendez’ building down or to expose his practice of illegally cashing welfare checks, his acquaintance with Benny Andujar, and his intimate relationship with the latter’s "common-law wife”, Carmen Escalera, allegedly kept him from reporting the incidents to the police.

With respect to the "common plan or scheme” exception, the forcible entry and violent robbery at issue and the prior uncharged offenses were neither connected parts of a common scheme, nor so related as to show a common nature. (People v Molineux, supra, at p 305.) There was no evidence of a concurrence of common features, i.e., time, place, and character or of distinguishing oddities linking these dissimilar crimes. (See, People v Allweiss, 48 NY2d 40, 47-48 [1979]; compare, People v Grant, 104 AD2d 674, 675 [3d Dept 1984].) The modus operandi of the burglary and violent robbery at issue also lacks sufficient similarity with the prior larcenies to have any significant bearing upon the identity issue. A proper balancing of the probative value of prior crimes evidence against its prejudicial effect militates against admissibility where, as here, proof of defendant’s prior criminality was, at best, cumulative in nature and unnecessary to establish any material element of the People’s case. (People v Ventimiglia, 52 NY2d 350, 360 [1981]; People v Blanchard, 83 AD2d 905, 906 [2d Dept 1981].) The victim and two of defendant’s alleged accomplices, Andujar and the lookout at the front door, Frankie Nieves, whom Mendez failed to identify, testified for the People and identified defendant as a perpetrator of the crimes at issue.

It should be noted that all of the "prior crimes” evidence came from witnesses who testified, directly, that they had seen the defendant commit the crime at issue. Coming from several [213]*213alleged eyewitnesses who identified defendant, such evidence cannot be other than cumulative. Because of the great danger of prejudice to a defendant from a jury’s considering such evidence as an indication of a predisposition by the defendant to commit the crime at issue, evidence of prior crimes should be admitted only where there is a demonstrated necessity for its receipt into evidence, not where it is simply cumulative.

The prejudice to the defendant is underscored here, by the court’s omission to give proper limiting instructions describing the proper use of the uncharged crimes evidence, either when the evidence was adduced, or in its final charge to the jury. (See, People v Beam, 57 NY2d 241, 250 [1982]; People v Sudler, 100 AD2d 915, 916 [2d Dept 1984].) Assuming, arguendo, that the error concerning the lack of proper limiting instructions was not preserved, we reach it in the interest of justice. (CPL 470.15 [6].)

Such failure was clearly demonstrated by the prosecutor’s closing argument. In his summation, the prosecutor compounded the prejudicial effect of the improper Molineux testimony by arguing that the defendant was guilty because of his criminal propensity. He urged the jury to convict the defendant, saying: "Wilson Johnson, having ripped Mr. Mendez off repetitively over eight months, ripped him off on October 20, 1981”. In response to the defendant’s objection, the court did not give any limiting instruction. Rather, it instructed the jurors that they were free to accept or reject the Assistant District Attorney’s conclusion. This again was error.

The court also erred in permitting the People, over objection, to elicit, on redirect examination, a hearsay statement of private investigator Alan Porcher. Porcher had been retained by the defendant, had interviewed Mendez in Carmen Escalera’s presence on February 15, 1982, and had prepared a report. The People called him to testify as to the dates of his interviews of Mendez, and whether the interviews were tape recorded. On cross-examination, the defense explored some of the content of the interviews and the reports, i.e., Carmen Escalera’s account of the burglary and arrest; her misrepresentation that the police had found the defendant’s fingerprints on the stolen television; her evasive answer when asked whether her nephew Frankie Nieves (the lookout) had returned the television to Mendez; and Mendez’ statement that she had told him that her husband’s participation in the robbery was coerced.

[214]*214The prosecutor objected to this line of questioning, but withdrew his objection upon examining a copy of the report. After a colloquy with counsel, the court ruled that "we’re not going to hide anything from the jury” and, over objection, permitted the People on redirect examination to elicit Escalera’s statement that the defendant’s brother had offered to return the stolen money and property if Mendez would drop the charges.

While a report prepared in the ordinary course of business may, in proper circumstances, qualify for admissibility under the business record exception to the hearsay rule, statements contained in that report, made by one person to another to whom he has no duty to report, constitute inadmissible hearsay. (Matter of Leon RR, 48 NY2d 117, 122-123 [1979].)

There is no "full disclosure” exception to the rule against hearsay.

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Cite This Page — Counsel Stack

Bluebook (online)
114 A.D.2d 210, 498 N.Y.S.2d 804, 1986 N.Y. App. Div. LEXIS 49971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-johnson-nyappdiv-1986.