People v. Morris

999 N.E.2d 160, 21 N.Y.3d 588

• Court: New York Court of Appeals
• Decided: October 15, 2013
• Status: Published

Opinions

OPINION OF THE COURT

Abdus-Salaam, J.

In People v Tosca (98 NY2d 660 [2002]) and People v Resek (3 NY3d 385 [2004]), we held that a trial court may, in its discretion, admit evidence of uncharged crimes to provide background information explaining the police actions to the jury if the probative value of the evidence outweighs the prejudice to the defendant, and the evidence is admitted with proper limiting instructions. Our application of these principles led to opposite outcomes in those cases: in Tosca, we held that the trial court did not abuse its discretion by allowing police testimony describing an uncharged crime (see 98 NY2d at 661); in Resek, we determined that the prejudicial value of such testimony, admitted with inadequate jury instructions, exceeded its probative worth (see 3 NY3d at 387).

Relying on Resek, defendant challenges the trial court’s decision to allow the People to introduce a recording of a 911 telephone call reporting that a person matching defendant’s description committed an uncharged gunpoint robbery, and police testimony describing the radio run they received about the call. We conclude that, under the circumstances of this case, the trial court did not abuse its discretion by permitting this evidence to be admitted, along with several thorough limiting instructions, as background information to explain the aggressive police action toward defendant.

I

The undisputed facts are as follows. Just after midnight on May 25, 2007, a 911 caller reported that a black male, wearing a white t-shirt with red sleeves, dark pants, and a white Band-aid on his chin, pulled a gun and stole the caller’s chain necklace at Beach 21st Street and Elk Drive in Far Rockaway. The caller stated that the perpetrator was with two other black males and that, after the attack, all three men walked down Beach 20th Street toward a CVS store on Seagirt Boulevard.

Police Officers Glenn Ziminski and Edward Moore were on routine patrol in Far Rockaway when they received a radio run from central dispatch reporting the gunpoint robbery. The dispatcher relayed the 911 caller’s description of the robber, his possible location, and that he was with two other black males. The officers responded immediately, driving their marked patrol car with lights and siren activated until they reached Beach 20th Street, where they observed defendant. Having determined that defendant appeared to fit the description conveyed in the radio run, the officers turned their lights and siren off and pulled alongside him. They exited the patrol car and ordered defendant to approach.

What occurred next was contested at trial, but there is no question that the officers acted aggressively toward defendant. Their actions included, at a minimum, grabbing defendant as he approached and forcibly pressing him against the patrol car. The officers ultimately recovered a .22 caliber Beretta semiautomatic pistol either on or near defendant’s person. Defendant was arrested and later indicted for resisting arrest (see Penal Law § 205.30) and two counts of criminal possession of a weapon in the second degree, one charging possession with intent to use the gun unlawfully (see Penal Law § 265.03 [1] [b]), and one charging possession not in his home or place of business (see § 265.03 [3]).

Prior to trial, the People asked the trial court to permit them to introduce a recording of the 911 call and to allow the officers to testify that they stopped defendant because he matched the description relayed in the radio run. The People urged that this evidence would complete the narrative of the arrest and explain the aggressive police actions to the jury, which would be called upon to assess the officers’ conduct and credibility.¹ Defendant objected, arguing that the evidence lacked probative value because he planned to admit that he possessed the gun recovered by the police. He also contended the evidence was prejudicial to his defense of temporary innocent possession. Defendant suggested that, rather than admit the 911 evidence, the court merely explain to the jury that “the reasoning for the defendant’s stop has been dealt with, [and] is not a matter for your concern,” and limit the police officers’ testimony on the subject to the following statement: “Pursuant to a radio run, we stopped defendant.”

The court ruled that the 911 evidence could be introduced at trial with appropriate limiting instructions. Balancing the probative value of the evidence against its potential prejudice, the court determined that the 911 call provided necessary background information that put the police actions in proper context for the jury. Without that background information, the court feared the jury would engage in “rampant speculation that the defendant . . . was just singled out as a young Black male in Queens . . . harassed by the police for no good reason.” Suppressing the evidence and issuing defendant’s proposed jury instruction, the court reasoned, would not deter such speculation. The court ruled, however, that if defendant took the stand, the People could not cross-examine him about any details concerning the uncharged robbery to challenge his credibility.

During trial, the court gave four limiting instructions to the jury regarding its consideration of the 911 evidence.² Each instruction emphasized that the evidence was being admitted solely “to explain the police actions in this case” and not for the truth of what the 911 caller said or to prove that defendant committed a gunpoint robbery. Critically, after the People played the recording of the 911 call, the court told the jury:

“Those statements from the individual that you heard on the 911 CD, they are not being admitted at this trial for the truth of what that person is saying to the 911 dispatcher. Indeed, if you hear any further testimony at this trial relative to those statements made by that caller, that evidence is not being admitted for the truth of what the caller is saying to the 911 dispatcher. As I told you yesterday, that evidence is admitted now and any further evidence related to this issue is admitted for a specific, limited purpose. The evidence is being admitted to explain the police actions, to explain what [they] did . . . after getting those transmissions or getting at least the substance of those transmissions relayed to that. That’s the only reason it’s being admitted. I am cautioning you again, that the defendant is not on trial for robbery. He’s not on trial for robbery with a gun and you have to keep all of that in mind.”

The People presented testimony from, among other witnesses, Officers Ziminski and Moore, who each testified that they stopped defendant because he matched the description in the radio run.³ The officers stated that they observed defendant walking with two black males near the reported location along Beach 20th Street toward Seagirt Boulevard. Ziminski grabbed defendant as he approached and held him against the patrol car, while Moore frisked defendant’s clothing, recovering the gun from a rolled-up cuff of his sweatpants. While the officers were examining the gun, defendant allegedly attempted to flee but was caught by Ziminski. A struggle ensued as the officers attempted to handcuff defendant, which ended with Ziminski tackling defendant to the ground. On cross-examination, the officers admitted that they did not recover a chain from defendant or any of the men (the other two men were frisked but not arrested), or retrieve the white Band-Aid, which they testified fell off defendant’s chin during the struggle.

Defendant took the stand to present his temporary innocent possession defense, stating that he found the gun on the ground near the CVS store and that he intended to notify the police about it after returning home. These plans were thwarted, however, when the officers stopped him just minutes later on Beach 20th Street. Defendant indicated that he was alone at the time of the police stop, and that he was walking toward Plain-view Avenue (rather than toward Seagirt Boulevard as the officers testified).

Defendant’s description of the police encounter differed in significant respects from that of the officers. According to defendant, he was trying to tell the officers that he had just found the gun when they pushed him down and grabbed his waist, causing the gun to fall on the ground. The officers then pressed him against the patrol car; defendant denied ever taking his hands off the car and stated that he merely turned his head in shock when the officers said he was “going down for a robbery.” The officers allegedly reacted by striking defendant on the back of the head, jumping on him, and hitting him several times in the face, causing injuries that required hospitalization and stitches.

Instructed on the defense of temporary innocent possession of a firearm, the jury returned a verdict acquitting defendant of the criminal possession of a weapon count charging possession with intent to use the gun unlawfully, but convicted defendant of the count charging possession not in his home or place of business. Defendant was also acquitted of resisting arrest. He was sentenced to a determinate prison term of five years, to be followed by five years of postrelease supervision.

Defendant appealed and the Appellate Division affirmed the judgment of conviction (89 AD3d 1112 [2d Dept 2011]). Citing our decisions in Tosca and Resek, the Appellate Division held that the trial court’s admission of the 911 evidence did not deprive defendant of a fair trial because that evidence was properly admitted to provide background information, had a greater probative value than prejudicial effect, and was accompanied by several limiting instructions (see id. at 1112-1113). Defendant now appeals pursuant to leave granted by a Judge of this Court (19 NY3d 964 [2012]), and we now affirm.

II

We begin with the familiar proposition that evidence of uncharged crimes is inadmissible where its purpose is only to show a defendant’s bad character or propensity towards crime (see e.g. People v Arafet, 13 NY3d 460, 465 [2009]; People v Giles, 11 NY3d 495, 499 [2008]; People v Alvino, 71 NY2d 233, 241 [1987]). However, “[w]hen evidence of uncharged crimes is relevant to some issue other than the defendant’s criminal disposition, it is generally held to be admissible on the theory that the probative value will outweigh the potential prejudice to the accused” (People v Allweiss, 48 NY2d 40, 47 [1979]).

People v Molineux (168 NY 264 [1901]) prescribes five well-recognized, nonpropensity purposes for which uncharged crimes may be relevant (see Alvino, 71 NY2d at 242 [“to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant”]; see also e.g. People v Ventimiglia, 52 NY2d 350, 359 [1981]; Molineux, 168 NY at 293). The Molineux categories are not exhaustive, however (see People v Santarelli, 49 NY2d 241, 248 [1980]), and we have held that evidence of prior, uncharged crimes may also be relevant to complete the narrative of the events charged in the indictment (see e.g. People v Till, 87 NY2d 835, 837 [1995]; People v Gines, 36 NY2d 932, 932-933 [1975]), and to provide necessary background information (see e.g. Till, supra; People v Green, 35 NY2d 437, 442 [1974]; see also Resek, 3 NY3d at 390; Tosca, 98 NY2d at 661).

Even if the uncharged crimes evidence meets the relevancy threshold (see People v Cass, 18 NY3d 553, 560 [2012]), it is admissible “only upon a trial court finding that its probative value for the jury outweighs the risk of undue prejudice to the defendant” (Till, 87 NY2d at 836-837; see e.g. Cass, supra). This inquiry involves “one of balancing in which both the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other” (Ventimiglia, 52 NY2d at 359-360, citing Santarelli, 49 NY2d at 248, and Allweiss, 48 NY2d at 47). Weighing the evidence’s probative value against its potential prejudice to the defendant is a matter of discretion for the trial court (see Cass, 18 NY3d at 560 n 3). Accordingly, “our review is limited to determining whether the trial court abused its discretion” (id., citing People v Hudy, 73 NY2d 40, 55 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]; Alvino, 71 NY2d at 242).

In Tosca, we held that the trial court did not abuse its discretion by admitting uncharged crime evidence as background information to explain the police actions (98 NY2d at 661, affg 287 AD2d 330 [2001]). During Tosca’s trial on a charge of criminal possession of a weapon in the third degree, the trial court allowed a police officer to testify that, shortly before the defendant was arrested, an unidentified livery cab driver “had reported an encounter with [the] defendant involving a gun” (Tosca, 287 AD2d at 330). The defendant was convicted and the Appellate Division affirmed, concluding that the police officer’s “testimony was necessary to complete the narrative and to explain the aggressive nature of the police confrontation with defendant” (id.). We agreed that the testimony was properly admitted “not for its truth, but to provide background information as to how and why the police pursued and confronted defendant” (Tosca, 98 NY2d at 661, citing Till, 87 NY2d at 837). Further, any prejudice was ameliorated by “the trial court twice explicitly instructing] the jury on the limited use it could make of the testimony and that the testimony was not to be considered proof of the uncharged crime” (id.).

Two years after Tosca, we applied these principles in Resek and determined that admission of uncharged crime evidence deprived the defendant of a fair trial (see 3 NY3d at 387). There, the grand jury indicted the defendant for criminal possession of a controlled substance with intent to sell, but failed to indict on a charge of criminal possession of a stolen car (see id.). The trial court permitted two police officers to testify, over the defendant’s objection, that before they arrested the defendant, they witnessed him drive away in a stolen car. The court gave two limiting instructions, neither of which mentioned that the grand jury had failed to indict on the stolen car charge. Instead, the court told the jury not to infer whether “the defendant did or did not steal the car” (id. at 388).

We reversed the defendant’s conviction in Resek because “[ajdmission of the testimony under these circumstances was . . . error” (id. at 389). Because the trial court failed to inform the jury that the grand jury did not indict the defendant on the stolen car charge, the police testimony “left the jury with an incomplete and prejudicial narrative,” which outweighed the evidence’s “legitimate” probative value: preventing speculation by the jury that “the police wrongfully targeted [the defendant] or otherwise abused their authority” (id.). The prejudice to the defendant “was not ameliorated by the court’s limiting instruction,” which we explained “made matters worse” by implying that the defendant may have, in fact, committed the uncharged crime (id.). In light of these circumstances—and given that the defendant “conceded his possession of the recovered drugs he was charged with intending to sell”—we concluded that it would have “sufficed [for the trial court] to instruct the jurors that the arrest was lawful and that they were not to speculate as to its reasons” (id. at 390), as had been suggested by Resek’s counsel before jury selection (see id. at 388).

Tosca and Resek are on equal footing. We recognized in both cases that suppression of uncharged crime evidence may lead the jury to speculate that the police actions were wrongful (see Resek, 3 NY3d at 389; Tosca, 98 NY2d at 661), and in such situations, the evidence may be relevant to a material, nonpropensity issue: providing “background information” that explains the police encounter (Tosca, supra) “and thus help[s] the jury understand the case in context” (Resek at 389). The analysis follows under Tosca and Resek that, if the evidence’s probative value in explaining the police encounter outweighs any undue prejudice to the defendant, the trial court may, in its discretion, admit the evidence with “proper limiting instructions” (Resek, supra; see Tosca, supra).

Determining whether the probity of such evidence exceeds the prejudice to the defendant “is a delicate business,” and as in almost every case involving Molineux or Molineux-type evidence, there is the risk “that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value” (Resek at 389). Yet this case-specific, discretionary exercise remains within the sound province of the trial court (see id. at 388-389; Tosca, supra), which is in the best position to evaluate the evidence (see e.g. People v Scarola, 71 NY2d 769, 777-778 [1988]). Thus, the trial court’s decision to admit the evidence may not be disturbed simply because a contrary determination could have been made or would have been reasonable. Rather, it must constitute an abuse of discretion as a matter of law (see Cass, 18 NY3d at 560 n 3).

III

On this record, we cannot say that the admission of the 911 evidence was an abuse of discretion. The trial court reasonably determined that, given the aggressive nature of the police confrontation with defendant and the attendant risk of improper speculation by the jury, the 911 evidence was necessary to provide background information explaining the police actions, and that its probative value outweighed the potential prejudice to defendant (see Tosca, 98 NY2d at 661). Defendant claims that the 911 evidence had no probative value because he admitted to possessing the gun and agreed not to challenge the propriety of the police stop. But the 911 evidence was probative of all of the police conduct in this case, not just the stop itself. The police behaved aggressively after the stop and before they discovered the gun by singling out defendant, grabbing him, and forcing him up against their patrol car. By specifying why the officers stopped defendant in the first instance, the 911 evidence allowed the jury to put this conduct in the proper context.

The evidence was also probative of the officers’ credibility, which was a central issue for the jury to resolve on the resisting arrest charge (see People v Cotton, 143 AD2d 680, 681 [2d Dept 1988]; People v Utley, 60 AD2d 657, 658 [2d Dept 1977]; see generally People v Negron, 91 NY2d 788, 792 [1998]). The People had the burden of proving every element of the resisting arrest charge (see generally People v Hanley, 5 NY3d 108, 113 [2005]), and meeting that burden depended largely on the jury’s evaluation of the officers’ testimony and, particularly, the weight the jury accorded it in relation to contrary testimony proffered by defendant (see Cotton, 143 AD2d at 680-681, citing People v Gaimari, 176 NY 84, 94 [1903]; see also Negron, 91 NY2d at 792 [it is “our long-standing recognition that a jury is entitled to assess the credibility of witnesses and determine, for itself, what portion of their testimony to accept and the weight such testimony should be given”]). Although the officers admitted to grabbing defendant, pushing him against the car, and tackling him when he tried to escape, defendant testified that the officers hit him several times in the head and face, that he never tried to escape, and that the officers’ violent acts were essentially unprovoked. There was also contrary testimony about how the officers recovered the gun, which direction defendant was walking when he was stopped, and whether he was alone or with two black men as described in the radio run. The 911 evidence better enabled the jury to resolve these discrepancies and assess the credibility of the officers’ testimony. Without a complete picture of the events preceding the encounter, the jury would have had little reason not to fault the officers for being overly aggressive and to discredit their testimony as untruthful.

Any potential for prejudice here was offset by the trial court’s four strong limiting instructions, which emphasized that the 911 evidence “was not to be considered proof of the uncharged crime” (Tosca, 98 NY2d at 661). The prejudicial tipping point in Resek was the botched jury instruction, during which the trial court insinuated that the defendant may have been guilty of stealing the car (see 3 NY3d at 388). The court’s instructions in this case, by contrast, were well-timed, thorough, and in no way compounded the potential prejudice to defendant.⁴

Jurors are presumed to have followed a trial judge’s limiting instructions (see e.g. People v Davis, 58 NY2d 1102, 1104 [1983]), and that presumption is appropriate here. The trial court explicitly instructed the jury, on four occasions, that the 911 evidence was not being admitted “for the truth that a robbery in fact occurred or that defendant was in fact the one who did that robbery.” Thus, the court did not “emphasize[ ] the robbery” (dissenting op at 604) so much as it emphasized the limited use of the 911 evidence. Defendant also took the stand to present his innocent possession defense, where he challenged the officers’ version of the arrest and their credibility, without the risk of being cross-examined about the purported robbery. Although the jury ultimately rejected his defense, it rendered a “discerning and discrete verdict” (Till, 87 NY2d at 837), acquitting defendant of the weapon count charging possession with intent to use the gun unlawfully and the resisting arrest charge.

Apart from the confusing jury instruction, other circumstances that conspired to deprive Resek of a fair trial are not present in this case. The grand jury did not fail to indict defendant for robbery (because the People never presented that charge), and he therefore was never “cleared” of the underlying prior crime like the defendant in Resek (3 NY3d at 389). There is also no indication that Resek concerned an aggressive police encounter like the one at issue here, or that the credibility of the testifying officers was so entwined with the People’s burden of proof on the charged crime of resisting arrest.

Finally, Resek does not require, as defendant and the dissent suggest, that a trial court suppress uncharged crime evidence every time a defendant proposes some “less prejudicial” alternative to admission (3 NY3d at 390). While trial courts cannot “automatically allow[ ] the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information,” they also need not exclude uncharged crime evidence simply because a defendant stipulates that “the arrest was lawful” and asks that the jury be instructed “not to speculate as to its reasons” (id.). A contrary rule would effectively nullify trial courts’ discretion in these matters, and we would soon be called upon to parse which “means” are more or less prejudicial than others, when in fact trial courts are in a much better position to make these determinations.

Here, the trial court did not exceed its discretion by declining to instruct the jury that the stop was proper and to limit the officers’ testimony to exclude the details of the radio run. The court fairly determined that these limitations, proposed by defendant, “would have placed a mystery before the jury” (People v Barnes, 57 AD3d 289, 290 [1st Dept 2008], lv denied 12 NY3d 781 [2009]), inviting it to speculate whether defendant was harassed by police and to “draw[ ] unfair inferences concerning the officers’ credibility” (Tosca, 287 AD2d at 330 [trial court did not err in rejecting the “(d)efendant’s proffered stipulation that the police were simply responding to an unspecified radio run”]). Although other “less prejudicial means” may have been available or reasonable in this case (Resek, 3 NY3d at 390), the trial court did not abuse its discretion by failing to employ them, and we discern no basis upon which to disturb its decision.

Accordingly, the order of the Appellate Division should be affirmed.

1 . The People also revealed that, although the 911 caller identified defendant in a showup while defendant was being held at the scene of the arrest, he had since become unreachable and would not be testifying at trial.

2 . The court issued limiting instructions after (1) the People referenced the 911 call in their opening statement, (2) the jury first heard the recording of the 911 call (and received a transcript as a demonstrative aid), (3) Officer Ziminski testified that he received a radio run about a gunpoint robbery, and (4) the People played the 911 call during their summation.

3 . When Officer Ziminski referenced the radio run, the court stated to the jury: “I reiterate that same instruction, we are not trying a robbery. This testimony is not being offered for the truth that a robbery in fact took place, but just to explain [Officer Ziminski’s] actions in response to getting a radio run as to an alleged robbery.”

4 . The dissent faults the trial court for its “numerous references” to the 911 evidence, contending that the four instructions only served to “continuously remind the jury of defendant’s possible involvement in an armed robbery” (dissenting op at 604). But it is counterintuitive to assume defendant was prejudiced by the trial court’s diligence in reminding the jury, at all critical junctures during trial, that it could not properly infer that defendant was guilty of armed robbery or consider the 911 evidence for any purpose other than “to explain the police actions” (see Tosca, 98 NY2d at 661).