The People v. Harvey Weinstein

• Court: New York Court of Appeals
• Decided: April 25, 2024
• Docket: 24
• Status: Published

Opinion

State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 24 The People &c., Respondent, v. Harvey Weinstein, Appellant.

Arthur L. Aidala, for appellant. Steven C. Wu, for respondent. Sanctuary for Families Inc., et al., New York State Association of Criminal Defense Lawyers, amici curiae.

RIVERA, J.:

Every person accused of a crime is constitutionally presumed innocent and entitled

to a fair trial and the opportunity to present a defense (see U.S. Const Amend VI, XIV; NY

Const art I, § 6; Estelle v Williams, 425 US 501, 503 [1976] [“The right to a fair trial is a

fundamental liberty secured by the Fourteenth Amendment” and “(t)he presumption of

innocence, although not articulated in the Constitution, is a basic component of a fair trial

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under our system of criminal justice”]; Crane v Kentucky, 476 US 683, 690 [1985]

[“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . or

in the Compulsory Process or Confrontation clauses of the Sixth Amendment . . . the

Constitution guarantees criminal defendants ‘a meaningful opportunity to present a

complete defense’ ”], quoting California v Trombetta, 467 US 479, 485 [1984]).

Under our system of justice, the accused has a right to be held to account only for

the crime charged and, thus, allegations of prior bad acts may not be admitted against them

for the sole purpose of establishing their propensity for criminality (see People v Molineux,

168 NY 264 [1901]). Nor may the prosecution use “prior convictions or proof of the prior

commission of specific, criminal, vicious or immoral acts” other than to impeach the

accused’s credibility (People v Sandoval, 34 NY2d 371, 374 [1974]). It is our solemn duty

to diligently guard these rights regardless of the crime charged, the reputation of the

accused, or the pressure to convict (see Boyd v United States, 116 US 616, 635 [1886] [“It

is the duty of courts to be watchful for the constitutional rights of the citizen, and against

any stealthy encroachments thereon”]).

Defendant was convicted by a jury for various sexual crimes against three named

complainants and, on appeal, claims that he was judged, not on the conduct for which he

was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts. We

conclude that the trial court erroneously admitted testimony of uncharged, alleged prior

sexual acts against persons other than the complainants of the underlying crimes because

that testimony served no material non-propensity purpose. The court compounded that

error when it ruled that defendant, who had no criminal history, could be cross examined

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about those allegations as well as numerous allegations of misconduct that portrayed

defendant in a highly prejudicial light. The synergistic effect of these errors was not

harmless. The only evidence against defendant was the complainants’ testimony, and the

result of the court’s rulings, on the one hand, was to bolster their credibility and diminish

defendant’s character before the jury. On the other hand, the threat of a cross-examination

highlighting these untested allegations undermined defendant’s right to testify. The remedy

for these egregious errors is a new trial.

However, we reject defendant’s claim that the third-degree rape prosecution was

untimely under CPL 30.10 because, as a New York resident, his brief absences from the

State before the authorities were aware of the crime did not toll the limitations period.

Defendant’s argument finds no support in the statutory text. Therefore, the trial court

properly discounted the days defendant was continuously outside the state and correctly

held that the prosecution was not time-barred. Defendant may be retried on this count.

I.

A.

Defendant Harvey Weinstein was charged with: one count of first-degree criminal

sexual act under Penal Law § 130.50 (1), based on allegations that, on July 10, 2006,

defendant forcibly performed oral sex on Complainant A in his New York City apartment;

one count of first-degree rape under Penal Law § 130.35 (1) and one count of third-degree

rape under Penal Law § 130.25 (3), based on allegations that, on March 18, 2013,

defendant engaged in forcible intercourse and oral sex with Complainant B; and two counts

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of predatory sexual assault under Penal Law § 130.95 (2), based on allegations that

defendant engaged in the attacks against Complainants A and B after having raped

Complainant C—in either 1993 or 1994.1 The court denied defendant’s motion to dismiss

the third-degree rape charge as untimely, concluding that under CPL 30.10 (4) (a) (i), the

statute of limitations was properly tolled during the time defendant was continuously

outside New York State. Defendant was tried before a single jury on all counts.

At the time of the alleged crimes and at the time of the trial, defendant was a

well-known, powerful man within the entertainment industry, having produced several

award winning and highly profitable films. The prosecution’s theory of the case was that

defendant abused his power to take advantage of aspiring female actors, like complainants,

to coerce them into unwanted sexual encounters. According to the prosecution, the quid

pro quo of assisting them with their careers in exchange for sexual favors on demand was

both common behavior and a well-known secret throughout the film industry. When his

victims resisted his sexual demands, the prosecution argued, defendant used force.

1 All the counts include a component of intent to commit the act charged without the victim’s consent (see People v Williams, 81 NY2d 303, 316-317 [1993]; People v Worden, 22 NY3d 982, 984 [2013]). To establish first-degree criminal sexual act and first-degree rape the prosecution must prove beyond a reasonable doubt that a defendant used forcible compulsion, to engage in “oral or anal sexual conduct” (Penal Law § 130.50 [1]), or “sexual intercourse” (Penal Law § 130.35 [1]). To establish third-degree rape the prosecution must prove beyond a reasonable doubt that a defendant “engage[d] in sexual intercourse with another person without such person’s consent” (Penal Law § 130.25 [3]). Predatory sexual assault requires the prosecution prove beyond a reasonable doubt, as relevant here, that a defendant committed either first-degree rape or first-degree criminal sexual act and first-degree rape, first-degree criminal sexual act, or aggravated first-degree sexual abuse (see Penal Law § 130.70) “against one or more additional persons (Penal Law § 130.95 [2]). -4- -5- No. 24

Traumatized by defendant’s sexual assaults, and fearing retaliation, the complainants never

reported the attacks and continued personal and professional relationships with him for

years afterwards.

Before trial, the court granted the prosecution’s application to admit certain

testimony of uncharged crimes and miscellaneous bad acts as an exception to the Molineux

rule, prohibiting such evidence, to establish defendant’s intent and his understanding of the

complainants’ lack of consent. Thus, Complainant B could testify about defendant’s

uncharged sexual assaults against her before and after the charged rape and her awareness

of defendant’s abusive and threatening behavior, and three other women (the “Molineux

Witnesses”) could testify regarding defendant’s sexual misconduct towards them years

before and after the charged offenses involving Complainants A and B.

The court also granted, in large part, over defendant’s objection, the prosecution’s

Sandoval application to cross-examine defendant on a broad range of uncharged bad acts

should he testify. Pursuant to this ruling, the prosecution was permitted to ask about, for

example, whether defendant: directed a witness to lie to defendant’s wife; filed an

application for a passport using a friend’s social security number; told a woman he “could

harm her professionally” but could also offer her a book publishing opportunity; used his

entertainment company’s budget for personal costs; withdrew from a business deal and

asked others to cease its funding; hid a woman’s clothes; insisted that members of his staff

falsify a photo for a movie poster by photoshopping a female actor’s head on another

woman’s nude body; told a private intelligence firm to manipulate or lie to people;

scheduled a business meeting in 2012 with a woman under false pretenses; induced

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executives to lie on his behalf; made threats and committed acts of violence against people

who worked for him; abandoned a colleague by the side of the road in a foreign country;

physically attacked his brother; threatened to cut off a colleague’s genitals with gardening

shears; screamed and cursed at hotel restaurant staff after they told him the kitchen was

closed; and threw a table of food. The court also permitted the prosecution to cross-examine

defendant about the details of the sexual assault allegations described by the Molineux

Witnesses during the prosecution’s case-in-chief.

B.

After the court denied defendant’s motion to dismiss the third-degree rape charge

as time-barred, the case proceeded to trial. Complainant A testified that she had known

defendant since 2004 when she met him in a hotel room to discuss a job opportunity she

later accepted, during which he made comments about her body and asked her for a

massage, which she refused. Sometime later, defendant unsuccessfully propositioned her

to travel abroad with him and, at one point, “barged” into her apartment. Two years later,

defendant invited Complainant A to a film premiere in Los Angeles and, the day before

she was to travel, asked her to his New York hotel room. When she arrived, defendant

“lunged” at her to kiss her. She said, “no, no, no” and tried to push him away, but defendant

pulled her back towards him and “kiss[ed] and fondl[ed] her.” She attempted to flee, but

defendant used “his weight and his body” to lead her into the bedroom, where he pushed

her “with his body” until she fell backward onto the bed. She recalled that she tried several

times to get up, but each time defendant pushed her back. She “kick[ed]” and “push[ed]”

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to “get away,” but defendant held her arms by her wrists and laid on top of her, holding her

down. After she gave up struggling, he “forced himself on [her] orally.”

After she returned to New York, defendant again asked her to his hotel room where,

according to Complainant A, he “grabbed” her by the arm and led her “straight towards the

bed.” She testified that she “laid there” and “didn’t resist physically” as defendant “had

intercourse with [her]” while calling her derogatory names. Despite feeling “embarrassed”

and unsure of “how to deal with it,” Complainant A maintained a “professional connection”

with defendant because she “wanted a job.” Over the next two-and-a-half years, she met

defendant in London to “pitch him an idea” and sent him friendly e-mails thanking him for

his “support” and signing off with: “Lots of love, [A].”

Complainant B testified that she wanted to act since childhood and first met

defendant at a party in February 2013, where defendant expressed interest in her career.

Defendant subsequently took her to exclusive Academy Awards parties and dinners. Later

that same month, defendant invited Complainant B to his hotel room in Los Angeles,

California and, when she entered, grabbed both of her arms and tried to kiss her “like crazy”

and then sexually assaulted her. Afterwards, she decided to initiate a “real relationship”

with defendant and saw him regularly, engaging in consensual oral sex with him.

Complainant B testified that, during their relationship, defendant attempted to persuade her

to have a sexual interaction with himself and another actress but both women were

uncomfortable, and Complainant B left the room. During the defense’s cross-examination

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of Complainant B, the prosecution successfully moved to present the other woman’s

testimony about this incident and her testimony corroborated Complainant B’s description.

Complainant B also testified that, in March 2013, she and some friends met

defendant for breakfast in a Manhattan hotel. Defendant arrived early and booked a room.

Once in the room, Complainant B argued with defendant, saying that they did not “have

time” for anything sexual. She stated that she twice tried to leave, but defendant “blocked”

her by putting his hand on the door above her head and “slam[ming]” it shut. Defendant

told her to undress in a “sharp and angry” tone and when she hesitated, defendant

“grab[bed] her hand” and held it to “force” her to undress. When Complainant B was

completely naked, defendant told her to lie down on the bed and, after disrobing in the

bathroom, he got on top and had intercourse with her.

Complainant B explained that she maintained a friendly relationship with defendant

afterwards out of fear for her personal safety and professional prospects. When defendant

discovered she was dating another actor, he told her: “ ‘[Y]ou owe me one more time’ ”

and “dragg[ed]” her into his Los Angeles hotel room. Complainant B pleaded “no, please,

no,” but defendant “lunged” at her and “ripped” her pants off, leaving scratches on both

legs. He then forcibly performed oral sex on her, forced her to reciprocate, and forcibly

had intercourse with her. She maintained a friendly relationship with defendant during the

years that followed, which included consensual sexual relations and emails telling

defendant that she loved him.

Complainant C, an established Hollywood actor, testified that she met defendant

during the early 1990s and that he played a role in her becoming addicted to drugs at that

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time. Sometime during the 1993-1994 winter, they had dinner together and he left her at

her Manhattan apartment. A half hour later, he returned, pushed his way inside, grabbed

her near the collar, “led [her] into” the bedroom, and “shoved [her] on the bed.”

Complainant C explained that she was “[p]unching him” and “kicking him,” but defendant

restrained her hands above her head and “raped” her “while [she] was trying to fight, but

[she] could not fight anymore because he had [her] [h]ands locked.” Complainant C also

testified that, later in 1994, defendant repeatedly called her and sent cars to her hotel room

while the two were in London and, the following year, “tricked” her into agreeing to make

another film that she did not know his company was producing.

C.

The three Molineux Witnesses, testified about defendant’s individual unwanted

sexual advances towards them. Witness 1 stated that she met defendant in 2004 at a

Manhattan nightclub while she was working as an actor and defendant said he could help

her career. Sometime in 2004 or 2005, she met defendant in a hotel room for a networking

event. Defendant led her to the bedroom, where he suddenly put his hand up her skirt and

tried to put his hand inside her vagina and apologized when she pulled away. A few weeks

later, she agreed to meet defendant at another hotel where, clothed in a bathrobe, he told

her that he would sign contracts for her to work only if she had sex with him and his

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assistant, but then told her he was joking and that she would “never make it in this business”

unless she changed her attitude.

Witness 2 testified that she met defendant during the summer of 2005 while she was

an aspiring actor working as a cocktail server at a Manhattan lounge. Defendant gave her

his contact information and then, minutes later, “grabbed” her by the arm and led her

upstairs to a deserted terrace, where he “pulled” her so that she was facing him and

masturbated. A week or two later, Witness 2 was invited to read for a part at defendant’s

production company but, while in the waiting room, was told that defendant wanted to see

her at his apartment. When she arrived, defendant grabbed her arms and threw her on his

bed before removing her clothes and having intercourse with her as she “just froze” and

“looked off.” Witness 2 explained that defendant was “a heavy man” who “weighed [her]

down.” Defendant then drove Witness 2 back to the studio, but she was not allowed to

audition and did not get the part.

Witness 3 testified that she met defendant in February 2013 in Los Angeles, where

she was working as an actor. Another actor friend of hers invited her to a Beverly Hills

hotel to discuss a film script. Defendant invited the two to continue the conversation inside

his room and, once inside, led Witness 3 into a bathroom as the friend closed the door

behind them. She then testified in detail about how defendant undressed as she nervously

laughed before he pulled down her dress and masturbated, despite her protests, while

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grasping her breast and asking her how else he could know whether she could act. The

prosecution admitted photographs of the dress she had been wearing into evidence. 2

Following the testimonies of these three Molineux Witnesses, the trial court

instructed the jury that this evidence “must not be considered for the purpose of proving

that the defendant had a propensity or predisposition to commit the crimes charged.” The

court further explained that the prosecution introduced the Molineux Witnesses to the jurors

“for [their] consideration on the question of whether the defendant intended to engage in

the sexual acts, and whether each of the complaining witnesses consented.” During the

final charge to the jury, the court reiterated that the testimonies of the Molineux Witnesses

“was offered for [its] consideration on the issues of forcible compulsion and lack of

consent.”

The prosecution also presented testimony from a forensic psychiatrist and an expert

on rape trauma syndrome. She described how sexual assault victims may behave in ways

towards their attackers that persons unfamiliar with the syndrome might consider

counterintuitive. She attempted to dispel certain rape myths, including that most rapes are

committed by strangers and that “credible” victims promptly report attacks and discontinue

2 Defendant was tried in California for this conduct against Witness 3, but the jury failed to reach a verdict.

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relationships with their attackers. She further testified that traumatic events narrow the

brain’s ability to focus on specific details, yielding clearer memories of such events.

Defendant did not testify on his behalf but, during cross-examination of the

complainants and during closing argument, defense counsel questioned the credibility of

the complainants by highlighting their continued personal and professional relationships

with defendant and Complainant B’s admission that she continued a consensual sexual

relationship with defendant after her alleged March 2013 rape. Defendant also presented

testimony, as limited by the court, from a psychologist specializing in human memory who

testified that exposure to falsehoods regarding a traumatic incident leads to the formation

of false memories, which themselves could fade with time. She also testified that asking a

traumatized person to remember the trauma could cause additional stress that further

impairs their memory of the event.3

The jury acquitted defendant of both counts of predatory sexual assault and the

first-degree rape count, and convicted him of first-degree criminal sexual act for the July

10, 2006 Complainant A charge and third-degree rape for the March 18, 2013

3 Defendant also proffered testimony of an expert on human memory but did not call them to the stand after the court limited both proposed experts’ testimonies to memory flaws in recovering traumatic events and precluded specific testimony about sexual assault memories.

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Complainant B charge. The court sentenced defendant to consecutive terms on each count,

an aggregate 23 years in prison, followed by five years post-release supervision.

The Appellate Division affirmed (207 AD3d 33 [1st Dept 2022]). The court

concluded, as relevant here, that the tolling provisions of CPL 30.10 (4) applied and the

third-degree rape prosecution was timely commenced. The court also concluded that the

trial court properly admitted the Molineux testimonies to show that defendant’s sole interest

in the complainants was sexual and their consent was irrelevant to him because, during his

prior experiences with the Molineux Witnesses he had, as he had done with complainants,

expressed an interest in helping them and yet they “reacted negatively to defendant’s

advances” (id. at 65). This “demonstrate[d] to the jury that defendant knew that a woman

would not consent to having sex with him merely as a quid pro quo for the assistance he

could provide them in their professional career” (id.). The court observed that the amount

of Sandoval material on which the trial court permitted the prosecution to cross-examine

defendant had he testified was “unquestionably large” but that “all of the material allowed

by the court was unquestionably relevant” because “[a]llegations that defendant solicited

lies or deception went directly to his credibility” and “[h]is abusive or violent behavior in

business settings ‘reflected a willingness to place [his] self-interest above the interests of

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another person’ ” (id. at 68-69, quoting People v Wells, 51 AD3d 403, 403 [1st Dept 2008]).

A Judge of this Court granted defendant leave to appeal (38 NY3d 1154 [2022]).

II.

Defendant claims that his third-degree rape conviction should be reversed because

the prosecution was commenced beyond CPL 30.10 (2) (b)’s then-applicable five-year

statute of limitations (see CPL former 30.10 [2] [b]).4 The prosecution of this count was

undisputedly commenced 69 days after expiration of that limitations period, but the

prosecution argued that CPL 30.10 (4) (a) tolled certain periods when defendant was not

in New York. Defendant claims the tolling provision does not apply here because it applies

only to nonresidents, he was not continuously outside the state within the meaning of the

statute, and, in any case, CPL 30.10 (4) does not apply to those periods when law

enforcement is unaware of the crime.

“The plain text of a statute is the best indicator of legislative intent and thus the

proper starting place in discerning its meaning” (Town of Irondequoit v County of Monroe,

36 NY3d 177, 182 [2020]); see also People v Cahill, 2 NY3d 14, 117 [2003] [“(T)he plain

meaning of the statutory text is the best evidence of legislative intent and, in fact, the only

authoritative basis for interpretation”]). The Court has “eschewed efforts to rewrite the

statute to achieve what a court or advocate perceives to be a better outcome” (People v

4 The statute was subsequently amended to its current version, which sets a 20-year limitations period or 10 years from when the crime is reported, “whichever is earlier” (CPL 30.10 [a-2]; L 2019, ch 315, § 2). - 14 - - 15 - No. 24

Anonymous, 34 NY3d 631, 643 [2020]) and has cautioned that, “[w]here a statute describes

the particular situations in which it is to apply, and no qualifying exception is added an

irrefutable inference must be drawn that what is omitted or not included was intended to

be omitted or excluded” (Matter of Alonzo M. v New York City Dept. of Probation, 72

NY2d 662, 665 [1988] [internal quotation marks omitted]; see also McKinney’s Cons

Laws of NY, Book 1, Statutes, § 363 and the cases cited therein [“(A) court cannot amend

a statute by inserting words that are not there, nor will a court read into a statute a provision

which the Legislature did not see fit to enact. . . . (A) court cannot, by implication, read or

supply in a statute a provision which it is reasonable to suppose the Legislature

intentionally omitted”]).

Section 30.10 (4) (a) provides, in pertinent part, that, “[i]n calculating the time

limitation applicable to commencement of a criminal action,” the time period “shall not”

include “[a]ny period following the commission of the offense during which (i) the

defendant was continuously outside this state or (ii) the whereabouts of the defendant were

continuously unknown and continuously unascertainable by the exercise of reasonable

diligence” (CPL 30.10 [4] [a]). Nowhere does this provision distinguish between residents

and nonresidents and we cannot read into the statute a limitation not adopted by the

legislature (see Matter of Alonzo M., 72 NY2d at 665). If the legislature intended this tolling

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provision to apply only to nonresidents or that courts should factor residency into a tolling

analysis, it would have said so expressly, as have several other jurisdictions. 5

Defendant argues that CPL 30.10 (4) (a) has only been applied to cases involving

nonresidents, relying principally on People v Knobel, where a nonresident defendant

remained continually outside of New York, which this Court concluded thereby tolled the

limitations period, adding that “all periods of a day or more that a nonresident defendant is

out-of-State should be totaled and toll the Statute of Limitations” (94 NY2d 226, 230

[1999]). However, the Knobel Court did not hold that CPL 30.10 (4) (a) is limited to

nonresidents, and the fact that Knobel and other courts have had occasion to apply the

statute to nonresidents is simply a consequence of the particular facts of those cases. Nor

does the statute contain any requirement that the tolling period apply once authorities know

that a crime has been committed and, as with defendant’s proposed exclusion for New York

residents, we reject defendant’s invitation to rewrite the statute to provide such limitation.

We also reject defendant’s contention that he was not “continuously outside this

state” during his brief absences from New York. This argument is based, in part, on his

erroneous and now squarely rejected interpretation that CPL 30.10 (4) (a) should not apply

to residents. To the extent defendant advocates for a lengthy temporal floor, Knobel

instructs to the contrary, as the Court there held that “all periods of a day or more” during

5 See e.g. AK ST § 12.10.040 (a); AZ ST § 13-107 (D); CT ST § 54-193 (e); Idaho Code Ann § 19-404; ILCS CH 720 § 5/3-7 (a) (1); Ind Code Ann 35-41-4-2 (h) (1); IA ST § 802.6 (1); MA ST 277 § 63; MI ST 767.24 (11); MN ST § 628.26 (1); MT ST 45-1- 206 (1); ND ST 29-04-04; NM ST § 30-1-9; OK ST T 22 § 153; OR ST § 131.145 (2)-(3); SD ST § 23A-42-5; TN ST § 40-2-103; WA ST 9A.04.080 (2) (1); WI ST 939.74 (3). - 16 - - 17 - No. 24

a defendant’s absence from the state “should be totaled and toll the Statute of Limitations”

(id.). Logically, then, even a day’s absence counts. Moreover, defendant’s absences would

count even under his reading: he was outside of New York for a total of 200 days, including

periods lasting up to two weeks. Defendant’s policy arguments in support of his

interpretation of the tolling provision are properly left to the legislature, the only body

constitutionally authorized to enact and amend the statute. 6

As the courts below properly concluded, defendant was outside of New York within

the meaning of CPL 30.10 (4) (a) for a period of time that tolled the statute of limitations,

and, therefore, the third-degree rape prosecution was timely commenced.

III.

Defendant argues that admission of the Molineux Witnesses’ testimonies detailing

sexual assaults he allegedly committed against them before and after the alleged offense

conduct ran afoul of Molineux and its progeny. We agree that this challenge has merit.

Indeed, we reject the prosecution’s theory, accepted by the Appellate Division and the

6 Relying on People v Quinto (77 AD 3d 76 [2010]) and quoting from People v Jordan, defendant claims, as he did before Supreme Court, that that CPL 30.10 (4) (a) “cannot be read to exclude the period of time during which the police are unaware of the commission of the offense itself” (43 AD3d 1976, 1977 [2007]). Although this claim is preserved, the record contains no evidence regarding when the police became aware of the allegations that gave rise to the charged counts, leaving us without “a factual record sufficient to permit appellate review” of the question underlying his claim (see People v Kinchen, 60 NY2d 772, 774 [1983]).

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dissenters here, that this testimony showed defendant’s state of mind to use forcible

compulsion against complainants and his understanding of their lack of consent. That

analysis, if adopted, would eviscerate the time-tested rule against propensity evidence,

which, in criminal cases, serves as a judicial bulwark against a guilty verdict based on

supposition rather than proof, on “collateral matters or [ ] because of [a defendant’s] past”

or on the defendant’s “bad character” alone (People v Alvino, 71 NY2d 233, 241 [1987]).

In Molineux, the Court reaffirmed that 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 [they are] guilty of the crime charged” (168 NY at 291). The purpose of the rule is

simple: “[E]vidence of a defendant’s uncharged crimes or prior misconduct is not

admissible if it cannot logically be connected to some specific material issue in the case,

and tends only to demonstrate the defendant’s propensity to commit the crime charged”

(People v Denson, 26 NY3d 179, 185 [2015] [internal quotation marks omitted]). The rule

“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 a crime

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shall be protected by the presumption of innocence until [they have] been proven guilty

beyond a reasonable doubt” (Molineux, 168 NY at 291).

To illustrate the universal acceptance of the rule and “the reasons upon which it

rests,” Molineux quoted its earlier decisions and those of other state courts (168 NY at 291).

For example, the Molineux Court noted, as far back as Coleman v People, the Court had

explained:

“ ‘The general rule is against receiving evidence of another offence. A person cannot be convicted of one offence upon proof that [they] committed another, however persuasive in a moral point of view such evidence may be. It would be easier to believe a person guilty of one crime if it was known that [they] had committed another of a similar character, or, indeed, of any character; but the injustice of such a rule in courts of justice is apparent. It would lead to convictions, upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offences to produce conviction for a single one’ ” (id. at 292, quoting 55 NY 81, 90 [1873]).

The Court also observed that, the following decade in People v Sharp, Judge Peckham

observed in a separate opinion that “ ‘[t]he general rule is that when a [person] is put upon

trial for one offense [they are] to be convicted, if at all, by evidence which shows that [they

are] guilty of that offense alone, and that, under ordinary circumstances, proof of [their]

guilt of one or a score of other offenses in [their] lifetime is wholly excluded’ ” (id., quoting

107 NY 427, 467 [1887] [Peckham, J.]). The Molineux Court recalled that, a few years

later, Judge Peckham authored the majority opinion in People v Shea explaining:

“ ‘The impropriety of giving evidence showing that the accused had been guilty of other crimes merely for the purpose of thereby inferring [their] guilt of the crime for which [they are] on trial may be said to have been assumed and consistently maintained by the English courts ever since the common law has itself been in existence. Two antagonistic methods for the judicial investigation of crime and the conduct of criminal trials have existed for

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many years. One of these methods favors this kind of evidence in order that the tribunal which is engaged in the trial of the accused may have the benefit of the light to be derived from a record of [their] whole past life, [their] tendencies, [their] nature, [their] associates, [their] practices, and, in fine, all the facts which go to make up the life of a human being. This is the method which is pursued in France, and it is claimed that entire justice is more apt to be done where such course is pursued than where it is omitted. The common law of England, however, has adopted another and, so far as the party accused is concerned, a much more merciful doctrine. By that law the criminal is to be presumed innocent until [their] guilt is made to appear, beyond a reasonable doubt, to a jury of 12 []. In order to prove [their] guilt it is not permitted to show [their] former character or to prove [their] guilt of other crimes, merely for the purpose of raising a presumption that [they] who would commit them would be more apt to commit the crime in question’ ” (147 NY 78, 99 [1895], citing Sharp, 107 NY at 427).

The Molineux Court also cited cases from Massachusetts and Pennsylvania that were to a

similar effect (see 168 NY at 293, citing Commonwealth v Jackson, 132 Mass 16, 19 [1882]

[noting “the general rule that limits the trial to the immediate act for which the defendant

is indicted”]; Shaffner v Commonwealth, 72 Pa 60, 65 [1872] [“It is a general rule that a

distinct crime, unconnected with that laid in the indictment, cannot be given in evidence

against a prisoner. It is not proper to raise a presumption of guilt, on the ground, that

having committed one crime, the depravity it exhibits makes it likely [they] would

commit another”]).

Molineux recognized exceptions by which evidence of other crimes could be used

to prove the charged crime when such evidence “tends to establish (1) motive; (2) intent;

(3) the absence of mistake or accident; (4) a common scheme or plan embracing the

commission of two or more crimes so related to each other that proof of one tends to

establish the others; and (5) the identity of the person charged with the commission of the

- 20 - - 21 - No. 24

crime on trial” (168 NY at 293). Although this list is not exhaustive (see Denson, 26 NY3d

at 185), the Court’s Molineux jurisprudence “begin[s] with the premise that uncharged

crimes are inadmissible and, from there, carve[s] out exceptions” (People v Resek, 3 NY3d

385, 390 [2004]).

In order to be admissible, Molineux evidence must “logically be connected to some

specific material issue in the case” and be “directly relevant” to it (Cass, 18 NY3d at

559-560). The prosecution has the burden of showing this direct relevance (see Denson, 26

NY3d at 185, citing Cass, 26 NY3d at 560). In other words, “evidence of a defendant’s

uncharged crimes or prior misconduct is not admissible if it cannot logically be connected

to some specific material issue in the case, and tends only to demonstrate the defendant’s

propensity to commit the crime charged” (Denson, 26 NY3d at 185 [internal quotation

marks omitted]). When “the proffered Molineux evidence is relevant to some material fact

in the case, other than the defendant’s propensity to commit the crime charged, it is not to

be excluded merely because it shows that the defendant had committed other crimes” (id.

[internal quotation marks omitted]).

In reviewing a Molineux ruling, the Court engages in a two-step process. First, it

evaluates whether the prosecution has “identif[ied] some issue, other than mere criminal

propensity, to which the evidence is relevant” (People v Hudy, 73 NY2d 40, 55 [1988]).

This “is a question of law, not discretion” and we review it de novo (People v Telfair, __

NY3d __, 2023 NY Slip Op 05965 at *2 [Ct App Nov. 21, 2023]). Second, if the evidence

is relevant to an issue aside from propensity, the Court determines whether its “probative

value exceeds the potential for prejudice resulting to the defendant” (Alvino, 71 NY2d at

- 21 - - 22 - No. 24

242). At this step, “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” (People v

Morris, 21 NY3d 588, 597 [2013]). However, “any substantial doubt” regarding how “to

strike a neat balance between possible prejudice to the defendant, and indispensability of

the challenged evidence to the [prosecution’s] case . . . should weight the scales in favor of

the defendant” (People v Stanard, 32 NY2d 143, 147 [1973]). If the Court concludes that

the trial court abused its discretion by admitting Molineux evidence, the Court must

determine whether the error was harmless or requires a new trial (see e.g. People v Leonard,

29 NY3d 1, 8 [2017]).

The Molineux ruling here fails at Step 1. The trial court admitted the evidence to

show defendant’s forcible intent when he had sexual relations with complainants, rebut his

claim of consent, and explain why complainants were “hesitant to report these assaults.”

The prosecution argues that “the unusual nature of the entertainment industry . . . and

defendant’s then-outsized role in [it],” popular “ ‘misconceptions’ about the behavior of

sexual assault victims,” and the complainants’ acceptance of favors from him and, in one

case, their continued consensual sexual relations with defendant following the assaults

rendered their testimonies “equivocal” on the issue of defendant’s intent. Thus, the

prosecution contends, the trial court properly admitted the three Molineux Witnesses’

testimonies to show his unlawful intent.

We disagree and conclude that, as a matter of law, the trial court erroneously held

that the prosecution showed that the Molineux Witnesses’ testimonies were necessary for

- 22 - - 23 - No. 24

a non-propensity purpose (see Hudy, 73 NY2d at 55). First, the complainants’ respective

testimonies were not “equivocal” on the issue of consent. Complainant A described a

violent, forcible sexual assault as well as her efforts to resist by kicking and pushing

defendant. Complainant B testified that defendant physically blocked her attempt to leave

the hotel room in March 2013 and that, when she did not comply with his demand that she

undress, he grabbed her hand to force compliance. Complainant C testified that defendant

lunged at her and that, when she tried to walk away, defendant used his weight to lead her

to the bedroom where she fell backward onto the bed. She tried to leave but he pushed her

back. She kicked and pushed to get away, but defendant used physical force to hold her

down with her hands above her head and then forced himself on her as she cried and

continued to say “no.”

There is no equivocality regarding consent when a person says “no” to a sexual

encounter, tries to leave, and attempts to physically resist their attacker before succumbing

to the attacker’s brute physical force. No reasonable person would understand such

behavior as having communicated anything other than their rejection of sexual activity.

Indeed, a contrary proposition perversely turns the concept of consent on its head. Simply

put, there is nothing consensual about the conduct complainants described. Thus, even

though the prosecution contends (and the Appellate Division agreed) that the jury could

believe complainants’ recollections of the sexual attacks yet still believe that defendant

- 23 - - 24 - No. 24

thought they were consenting to the sex, we conclude that such is inconceivable.

Complainants’ descriptions of events belie any such equivocation in the moment. 7

Nor did the fact that complainants maintained relationships with defendant—some

sexual—before and after the alleged assaults giving rise to the instant charges necessitate

introduction of the Molineux Witnesses’ testimonies to show defendant’s forcible intent.

As the Court has explained, where the crime requires the prosecution to prove forcible

compulsion, “[t]he intent required is the intent to perform the prohibited act—i.e. the intent

to forcibly compel another to engage” in the sexual act (People v Williams, 81 NY2d 303,

317-318 [1993]). And, when it comes to Molineux, “evidence sought to be introduced to

prove a defendant’s intention in the crime charged, the probative balance has generally

warranted admission of this evidence only where the acts involved in the crimes charged

are equivocal so that intention is not easily inferred from the acts alone” (People v

McKinney, 24 NY2d 180, 184 [1969] [internal quotation marks omitted]). In other words,

“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” (Alvino, 71 NY2d 233, 242 [1987]). Here, this

7 Even the treatise that Judge Singas quotes comments that “ ‘it is possible, albeit unlikely, for a complainant to testify truthfully that she did not consent to sexual intercourse and that the defendant raped her, and the defendant to raise an honest defense of mistake’ ” (Singas, J., dissenting op at 5, quoting Richard de Simone & Steven Y. Yurowitz, New York Criminal Law § 7:2 [6 West’s NY Prac Series, Dec. 2023 update]). Based on complainants’ accounts here, any claim by defendant that he made a mistake in the moment would have been implausible and, perhaps for this reason, that was not his defense. In that respect, Judge Singas’s reference to this class of cases is irrelevant.

- 24 - - 25 - No. 24

proposed basis for admitting the Molineux Witnesses’ testimonies is a candid

acknowledgement that the true purpose of this evidence was to bolster complainants’

credibilities by showing that others behaved similarly towards defendant even after he

made unwanted sexual demands. Of course, this is an impermissible propensity purpose

and the trial court therefore should not have admitted the evidence (see Molineux, 168 NY

at 291).

In reaching this legal conclusion, we take no “step backwards from recent advances

in our understanding of how sex crimes are perpetrated and why victims sometimes

respond in seemingly counterintuitive ways” (Cannataro, J., dissenting op at 2) and we do

not “shut[ ] [our] eyes to the enduring effect of rape culture on notions of consent, and

intent,” (Singas, J., dissenting op at 10) as the respective dissents assert. 8 On the contrary,

consistent with our judicial role, our analysis is grounded on bedrock principles of evidence

and the defendant’s constitutional right to the presumption of innocence and a fair trial.

8 Judge Singas discusses various academic theories redefining consent. They are not the law. Moreover, as two law journal student notes Judge Singas references observe (see Singas, J., dissenting op at 14 n 8), as part of an effort to combat campus sexual assault, the legislature in 2015 imposed on institutions of higher learning a uniform definition of “affirmative consent” which “is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity” that “can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity” but under which “[s]ilence or lack of resistance, in and of itself” is insufficient (Education Law § 6441 [1]). This definition is not part of the Penal Law and, indeed, some commentators have highlighted potential constitutional problems that might arise from its importation into the criminal law (see e.g. Aya Gruber, Consent Confusion, 38 Cardozo L Rev 415, 449-451 & n 176 [2016] [contending that, when integrated into the criminal law, “strict affirmative consent standards criminalize a significant amount of wanted, consensual sex” that might violate substantive due process under Lawrence v Texas (539 US 558, 578 [2003])]). - 25 - - 26 - No. 24

Judge Singas would ignore these principles because, in her view, they fail to account for

how rape myths distort jurors’ perceptions of victims, and corrupt the deliberative process

(see id. at 9-18).9 But justice for sexual assault victims is not incompatible with

well-established rules of evidence designed to ensure that criminal convictions result only

from the illegal conduct charged. Indeed, just as rape myths may impact the trier of fact’s

deliberative process, propensity evidence has a bias-inducing effect on jurors and tends to

undermine the truth-seeking function of trials. Thus, “[w]hen we limit Molineux or other

propensity evidence, we do so for policy reasons, due to fear of the jury’s ‘human tendency’

to more readily ‘believe in the guilt of an accused person when it is known or suspected

that [they have] previously committed a similar crime’ ” (People v Brewer, 28 NY3d 271,

9 Judge Singas correctly acknowledges that “[v]ictims of color are especially disadvantaged, through the intersection of rape and racial mythology, because of harmful stereotypes that ascribe heightened sexuality to these victims” (Singas, J., dissenting op at 13). However, racial and ethnic stereotypes and express and implicit bias also play a significant role in the failures of our criminal legal system, as “men of color . . . are still more likely than white men to be falsely accused, falsely arrested[,] . . . [a]nd, yes, even falsely convicted” (Hon. Barbara Madsen, Racial Bias in the Criminal Justice System, 47 Gonz L Rev 243, 245 [2012]. Erosion of our precedents that limit the introduction of uncharged conduct in the manner our dissenting colleagues suggest would only amplify the risk that biased jurors would justify a vote to convict defendants of color on such uncharged conduct in cases where the evidence supporting the charged conduct is weak— an all too real phenomenon (see Brandon L. Garrett, Judging Innocence, 108 Colum L Rev 55, 66 [2008] [observing that a study of the first 200 defendants exonerated by DNA evidence, “73% of innocent rape convicts were Black or Hispanic, while one study indicates that only approximately 37% of all rape convicts are minorities”]; see also Death Penalty Information Center, DPIC Special Report: The Innocence Epidemic [Feb. 18, 2021] at 19, available at https://dpic-cdn.org/production/documents/pdf/The-Innocence- Epidemic.pdf?dm=1683576587 [last accessed Mar. 28, 2024] [study concluding that “63.8% of wrongfully convicted death-row exonerees are people of color, 53.5% of whom are Black”]). Hollowing out the Molineux rule will not end systemic racism, but it may very well exacerbate societal injustices replicated within our courts. - 26 - - 27 - No. 24

276 [2016], quoting People v Ventimiglia, 52 NY2d 350, 359 [1981], citing Molineux, 168

NY at 313).

And while the Molineux rule addresses jurors’ reliance on propensity evidence,

contrary to the dissenters’ suggestion, we have a means to address jurors’ possible

disinclination to believe sexual assault victims who act in ways that appear contrary to the

jurors’ experiences or views (see Cannataro, J., dissenting op at 6-8; Singas, J., dissenting

op at 20-21). The proper method for dispelling rape myths in “nuanced and complex” cases

(Singas, J., dissenting op at 24) is the one deployed by the prosecution here: educating

jurors about rape myths and social misperceptions about sexual assault with expert

testimony explaining rape trauma and survivor responses (see Taylor, 75 NY2d at

288-289).10 Specifically, testimony from the prosecution’s expert provided non-propensity

evidence that addressed what some jurors might have seen as counterintuitive acts by

complainants when they continued to interact with defendant, and contextualized conduct

associated with rape trauma. As the expert explained to the jury, her professional work

with sexual assault victims led her to conclude that many victims often maintain contact

10 Judge Singas misconstrues our acknowledgment of this Molineux-compliant technique for combating rape myths as a “conclusion that the Molineux evidence was not necessary” and that it was “cumulative” in light of this “other evidence to dispel rape mythology” Singas, J., dissenting op at 22). At no point does our analysis turn the admissibility of the Molineux Witnesses’ testimonies on the availability of other evidence to accomplish this same end. Rather, we hold that their testimonies served no non-propensity purpose as a matter of law. Incidentally, the Molineux Witnesses did not dispel rape myths anyway, given that they rejected defendant’s advances. - 27 - - 28 - No. 24

with their attackers out of fear the attacker will retaliate. That testimony was particularly

crucial here.

Judge Singas asserts that this Court’s decision will have adverse effects on other

prosecutions. She claims, for example, that “instances in which a trafficker repeatedly

leverages workers’ undocumented status to coerce them into sex, or a restaurant manager

withholds tips from his employees unless they perform sexual acts” will become “a series

of individual ‘credibility contests’ and unrelated ‘misunderstandings’ ” (Singas, J.,

dissenting op at 23). However, cases involving such “repeated” conduct likely would

feature—much like this case did—direct evidence in the form of testimony from multiple

complainants. Judge Singas assumes, with no empirical data, that few such cases involve

evidence aside from victim testimony. In fact, many trafficking cases feature much more

than that (see e.g. People v Lamb, 37 NY3d 1174, 1175-1177, 1187-1188 [2021] [Singas,

J., concurring] [summarizing sex trafficking case featuring evidence of online

advertisements, phone records, emails, and photographs of unconscious victims, in

addition to victim testimony]). The Molineux rule has not and will not, based on its

application to this appeal, present an obstacle to prosecution of such cases, notwithstanding

Judge Singas’ exaggerated claims to the contrary.

Moreover, this was not a single-victim prosecution where there arguably is a

heightened risk that rape myths could impair the jury’s factfinding and credibility

determinations. Instead, three complainants testified to defendant’s violent actions on

different occasions, years apart, and how they behaved toward him long afterwards. There

also were significant differences between complainants and the Molineux Witnesses. All

- 28 - - 29 - No. 24

three complainants had long-term relationships with defendant, whereas the Molineux

Witnesses each interacted with defendant for brief periods. And Complainant B explained

that she maintained a consensual sexual relationship with defendant following the alleged

criminal conduct, whereas none of the Molineux Witnesses testified about consensual sex

with defendant at all.

Nor, as the prosecution contends, did “the unusual nature of the entertainment

industry” and defendant’s stature within it require admission of the Molineux Witnesses’

testimonies to show defendant’s forcible intent or awareness of complaints’ lack of consent

during the alleged crimes. According to this argument, defendant might have thought

complainants consented in order to advance their careers. The argument has a historical

basis:

“The casting couch—where, as the story goes, aspiring actresses had to trade sexual favors in order to win roles—has been a familiar image in Hollywood since the advent of the studio system in the 1920s and ’30s. Over time, the phrase has become emblematic of the way that sexual aggression has been normalized in an industry dominated by powerful men” (Ben Zimmer, ‘Casting Couch’: The Origins of a Pernicious Hollywood Cliché, The Atlantic [Oct. 16, 2017], available at https://www.theatlantic.com/ entertainment/archive/2017/10/casting-couch-the-origins-of-a-pernicious- hollywood-cliche/543000/ [last accessed Apr. 4, 2024]).

This perverse quid pro quo—i.e., “unwanted sexual relations imposed by superiors

on subordinates at work”—however, is not unique to the entertainment industry and “is

centuries old” (Reva B. Siegal, “A Short History of Sexual Harassment” in Catherine A.

MacKinnon, Directions in Sexual Harassment Law at 3 [2004]). Within such a dynamic,

an employer, supervisor, executive, or coworker with some power either offers to help—

or agrees not to hinder—a victim’s career–a historical reality especially for women because

- 29 - - 30 - No. 24

of the historical subjugation of women and their exclusion from positions of influence and

power (see Marion Crain and Ken Matheny, Sexual Harassment and Solidarity, 87 Geo

Wash L Rev 56, 71 [2019] [“(Q)uid pro quo harassment . . . occurs when a supervisor with

the power to grant job-related rewards or impose discipline conditions the receipt of the

reward or threatens discipline contingent on the victim’s willingness to confer sexual

favors (e.g., ‘sleep with me and I’ll promote you’ or ‘sleep with me or I’ll fire you’ ”)]; id.

at 74 [“(M)uch gender-based harassment, especially hostile work environment harassment,

is not driven by sexual desire and may not even be sexual in content. Instead, it takes the

form of undermining women’s competence to perform their jobs’ ”] [footnote omitted];

Sexual Harassment Claims of Abusive Work Environment Under Title VII, 97 Harv L Rev

1449, 1454 [1984] [“(Q)uid pro quo sexual harassment, is harassment that forces an

employee to choose between acceding to sexual demands or forfeiting job benefits,

continued employment, or promotion”] [footnote omitted]). But this is all irrelevant to

whether defendant intended to use force during the course of the alleged offense conduct

(see Williams, 81 NY2d at 317-318). Here, complainants testified that defendant used force

and, thus, his intent to commit the crime would have been established if the jury believed

their accounts and concluded that force was used. But the Molineux Witnesses’ prior

experiences with defendant had no bearing on whether defendant used force against

complainants.

Testimonies from three individuals about their own unwanted sexual encounters

with defendant were therefore “unnecessary” (Alvino, 71 NY2d at 242). Instead, the

testimony served to persuade the jury that, if he had attempted to coerce those three

- 30 - - 31 - No. 24

witnesses into nonconsensual sex, then he did the same to the victims on the dates and

under the circumstances as charged. That is pure propensity evidence and it is inadmissible

against a criminal defendant under Molineux and its century-old progeny (see Hudy, 73

NY2d at 55).

This case bears some noteworthy similarities to People v Vargas (88 NY2d 856

[1996]). There, the complainant told the police that the defendant followed her into her

apartment building and dragged her to the rooftop where he raped and sodomized her (id.

at 857). She testified that, thinking it would later facilitate his apprehension, she exchanged

phone numbers with the defendant and agreed to meet him the next day at his apartment,

where she had consensual sex with him (id.). The defendant told police that he met the

victim in the neighborhood and that she took him to the rooftop of her apartment building,

where they had consensual sex (id.). The trial court ruled that, given the defendant’s

consent defense, the prosecution could, under Molineux, present testimony from four other

women that the defendant had committed sexual misconduct against them, and, in

response, the defendant abandoned his consent defense and a jury later convicted him on a

host of counts, including first-degree rape (id. at 857-858; see also People v Vargas, 215

AD2d 415, 416 [2d Dept 1995] [listing the convicted counts]). This Court reversed his

conviction on various sexual offenses, holding that the trial court wrongly admitted the

testimonies of the other women to show the defendant’s intent (id. at 858). The Court’s

analysis there applies with equal force here:

“[T]wo starkly contrasting scenarios were presented, with only credibility in issue. If the trier of fact believed defendant’s version of events, complainant consented to a sexual encounter with him on the night of February 22, 1992.

- 31 - - 32 - No. 24

If the trier of fact found complainant more credible, defendant used force and threats to rape her, with intent readily inferable from the acts alleged. As in Hudy (73 NY2d at 56), the prior misconduct evidence was relevant only to lend credibility to complainant by suggesting that, because defendant had engaged in sexual misconduct with others, he was likely to have committed the acts charged. The evidence therefore was improperly ruled admissible” (id.).

Judge Singas attempts to distinguish Vargas because that case involved a “stranger rape”

and chides us for not doing the same (Singas, J., dissenting op at 7, 15). Here, of course,

we engage in a straightforward analysis that applies Vargas’s animating legal principles.

Thus, it is Judge Singas—not this Court—who “misses” the relevant point (id.) that here,

as in Vargas, defendant’s intent was “easily inferred from the commission of the act[s]

[themsel[ves]” as recounted by complainants in a case that boiled down to a credibility

contest for the jury to evaluate (88 NY2d at 858).

In sum, we conclude that the testimony from the Molineux Witnesses was

unnecessary to establish defendant’s intent and served only to establish defendant’s

propensity to commit the crimes charged. Neither the prosecution nor the trial court

“identif[ied] some issue, other than mere criminal propensity, to which the evidence is

relevant” (Hudy, 73 NY2d at 55), and therefore its admission during the prosecution’s case-

in-chief was error.

Defendant also claims that the trial court’s Sandoval ruling violated his right to

testify. For the reasons we discuss below, the trial court abused its discretion when it ruled

that defendant, who had no criminal history, could be cross-examined about prior,

- 32 - - 33 - No. 24

uncharged alleged bad acts and despicable behavior which was immaterial to his in-court

credibility, and which served no purpose other than to display for the jury defendant’s

loathsome character. The ruling necessarily and impermissibly impacted defendant’s

decision whether to take the stand in his defense and thus undermined the fact-finding

process in this case, which turned on the credibility of the parties.

Under Sandoval, a trial court may “make an advance ruling as to the use by the

prosecution of prior convictions or proof of the prior commission of specific criminal,

vicious or immoral acts for the purpose of impeaching a defendant’s credibility” (34 NY2d

at 374 [internal citations omitted]). “When evidence of other crimes has no purpose other

than to show that a defendant is of a criminal bent or character and thus likely to have

committed the crime charged, it should be excluded” (People v Schwartzman, 24 NY2d

241, 247 [1969]). The trial court must strike a balance “between the probative worth of

evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s

credibility on the one hand, and on the other the risk of unfair prejudice to the defendant,

measured both by the impact of such evidence if it is admitted after [their] testimony and

by the effect its probable introduction may have in discouraging [them] from taking the

stand on [their] own behalf” (Sandoval, 34 NY2d at 375). This category of evidence “will

always be detrimental to the defendant” and “will have a propensity to influence the jury

or the court” (id. at 376). Thus, to ensure that the defendant is not deprived of a fair trial

the court must consider whether the evidence will “have a disproportionate and improper

impact on the triers of fact,” and “undesirably deter the defendant from taking the stand

and thereby deny the jury or the court significant material evidence” (id.). “In weighing

- 33 - - 34 - No. 24

prejudice to the defendant’s right to a fair trial, an important consideration may be the effect

on the validity of the fact-finding process if the defendant does not testify out of fear of the

impact of the impeachment testimony for reasons other than its direct effect on [their]

credibility—as where the defendant would be the only available source of material

testimony in support of [their] defense” (id. at 378). We review Sandoval determinations

for abuse of discretion (see People v Walker, 83 NY2d 455, 459 [1994]).

Prior crimes and vicious and immoral conduct evidence includes that which shows

“a willingness or disposition on the part of the particular defendant voluntarily to place the

advancement of [their] individual self-interest ahead of principle or of the interests of

society,” because such proof “may be relevant to suggest [the defendant’s] readiness to do

so again on the witness stand” (Sandoval, 34 NY2d at 377). In other words, even if the

evidence did not “necessarily involve[ ] an act of dishonesty—like perjury, fraud, bribery

and similar offenses,” evidence that the defendant committed a “ruthless” act “voluntarily

and deliberately” supports the notion, that the defendant “may well disregard an oath and

resort to perjury if [they] believe[ ] that to be in [their] self-interest” (People v Bennette,

56 NY2d 142, 148 [1982]). This basis for admitting Sandoval evidence is, by its terms,

broad and vague. Accordingly, courts must be judicious in resting Sandoval rulings upon

it, lest acts of common selfishness lead to mini-trials on the defendant’s character that

distract the jury from the crimes charged. The question for trial courts at all times is whether

the evidence shows a defendant’s “lack of in-court veracity” (Sandoval, 34 NY2d at 377).

- 34 - - 35 - No. 24

If so, the evidence may be admitted—but only if not unduly prejudicial—for the “limited

purpose of attacking credibility” (id. at 373 n 1).

Here, the trial court’s Sandoval ruling—to the extent it permitted the prosecution to

cross-examine defendant about bullying and fits of anger towards employees, restaurant

workers, and business associates—was an abuse of discretion. 11 Defendant had no criminal

history, many of the acts approved for cross-examination by the court were not criminal in

nature and had little if any “probative value as to [defendant’s] lack of in-court veracity,”

while also prejudicing the jury against defendant (id. at 377). Far in excess of what

Sandoval and its progeny allow, the court ruled that the prosecution could ask defendant

details about whether he allegedly: verbally abused an employee and also threw food at

another worker; bullied, overworked and verbally abused his personal assistant; pulled out

of business deals; threw staplers and other objects at people; punched his brother at a

business meeting; threatened executives in his office; and photoshopped the head of an

actress onto the nude body of another without consent.

Without question, this is appalling, shameful, repulsive conduct that could only

diminish defendant’s character before the jury. But Sandoval does not legitimize

destroying a defendant’s character under the guise of prosecutorial need. Quite to the

contrary, because trial courts have a responsibility to carefully balance the prosecution’s

11 The remainder of the Sandoval ruling was a proper exercise of the court’s discretion. - 35 - - 36 - No. 24

interest in attacking the defendant’s credibility against the defendant’s constitutional rights

to a fair trial and to testify on their own behalf (see id. at 376-378).

Judge Cannataro attempts to cast our correction of this piece of the Sandoval ruling

as a byproduct of a general “ ‘disagreement with the ultimate outcome of the trial court’s

discretionary balancing determination’ ” (Cannataro, J., dissenting op at 10-11, quoting

Walker, 83 NY2d at 459). The nuance of our holding, which actually leaves much of the

trial court’s Sandoval determination intact, is more than enough to show that he is

mistaken. This is not a case where “the trial court might have been more discriminating”

but was nonetheless within its discretion (Walker, 83 NY2d at 458). Rather, the trial court

here abused its discretion as a matter of law when it ruled that the prosecution could

cross-examine defendant on a broad swath of uncharged misconduct that did not bear on

his credibility. Far from “invert[ing] Sandoval,” as Judge Cannataro charges (Cannataro,

J., dissenting op at 12), we heed it in its original form and apply it straightforwardly to

rectify a branch of a ruling that necessarily “undesirably deter[red] the defendant from

taking the stand” and thereby “den[ied] the jury . . . significant material evidence”

(Sandoval, 34 NY2d at 376).

The Molineux and Sandoval rulings had a synergistic effect that deprived defendant

of his right to a fair trial. This was a case—like many other sexual assault prosecutions—

where the complainant and the defendant are the only ones who know for certain what

happened. Here, the Molineux witnesses’ testimony bolstered complainants’ testimony,

- 36 - - 37 - No. 24

thereby impacting the jury’s credibility determination. As the Appellate Division observed,

the evidence of uncharged acts would show that defendant demanded sexual favors from

aspiring female actors, in return for promises of help with their careers, regardless of their

agreement to this quid pro quo. The testimony of the three Molineux Witnesses—although

framed as evidence of defendant’s intent to use forcible compulsion and his awareness of

the victims’ lack of consent—was, in courtroom reality, evidence of his propensity to

commit the crimes charged. This was not the sole error of constitutional dimension. The

erroneous Sandoval ruling allowing the prosecution to cross-examine defendant about

allegations of charged and uncharged bad acts was breathtakingly inclusive of behavior

that was loathsome but not the type of conduct that would assist the jury in measuring his

credibility on the stand. The ruling thus served to discourage defendant from exercising his

rights to present a defense and testify on his behalf. Together these errors deprived

defendant of the “self-standing” constitutional right to a fair trial, “and proof of guilt,

however overwhelming, can never be permitted to negate this right” (People v Crimmins,

36 NY2d 230, 238 [1975]; see also Estelle, 425 US at 503).

Even if that were not the case, and if we assumed that these errors were subject to

our nonconstitutional harmless-error analysis, we would not deem them harmless. 12 A

Molineux error “may be found harmless where ‘the proof of the defendant's guilt, without

reference to the error, is overwhelming’ and where there is no ‘significant

12 Because we are ordering a new trial, we do not address defendant’s claim that the trial court violated the Federal and State Constitutions when it declined, first, to discharge a prospective juror and then again once the juror was seated. - 37 - - 38 - No. 24

probability . . . that the jury would have acquitted the defendant had it not been for the

error” (People v Arafet, 13 NY3d 460, 467 [2009], quoting Crimmins, 36 NY2d at

241-242). The standard applied to nonconstitutional Sandoval errors is substantively the

same (see People v Grant, 7 NY3d 421, 424 [2006] [citation omitted]). Finally, in assessing

harmless error, the Court considers all trial errors “cumulatively” (People v Wing, 63 NY2d

754, 756 [1984]).

Here, “the whole case turned on a very close question of credibility”—the core

choice the jury had to make was whether to believe the complainants’ respective versions

of events (People v Williamson, 40 NY2d 1073, 1074 [1976]; cf. Benn v Greiner, 402 F3d

100, 106 [2d Cir 2005] [reversing habeas grant because the “case did not present a ‘he said,

she said’ scenario of two persons, one of whom claimed a sexual encounter was consensual

and the other of whom claimed it was not-a scenario in which the exclusion of cross-

examination regarding past unverified accusations might well have contributed to the jury

verdict in a substantial and injurious way”]). Moreover, the jury had to consider evidence

that, both before and after the alleged offense conduct, complainants were outwardly

friendly with defendant and maintained personal contacts—and in the case of

Complainant B, a years-long relationship that included consensual sex. The jury then had

to weigh this evidence against defendant’s expert evidence about the effects of trauma on

memory and the prosecution’s expert’s testimony that, contrary to public misperceptions

- 38 - - 39 - No. 24

about how “credible” victims respond, sexual assault survivors often exhibit this same

behavior.

Even if we were to regard the evidence against defendant as “overwhelming,” there

remains a “ ‘significant probability’ that, absent the trial court’s erroneous Molineux ruling,

the jury would have acquitted the defendant” (Arafet, 13 NY3d at 467, quoting Crimmins,

36 NY2d at 241-242). And, though “harmless-error analysis in the context of Sandoval

‘does not involve speculation as to whether a defendant would have testified if the legal

error had not occurred’ ” (Grant, 7 NY3d at 425, quoting People v Williams, 56 NY2d 236,

240 [1982]), the erroneous Sandoval determination here “might have affected defendant’s

decision whether to testify and provide critical information” (Williams, 56 NY2d at 241).

Thus, neither error was harmless.

IV.

“How different is our own common law, which is the product of all the wisdom and humanity of all the ages. Under it the accused comes into a court of justice, panoplied in the presumption of innocence, which shields [them] until [their] guilt is established beyond a reasonable doubt. [Their] character can be thrown into the balance by no one but [themselves]. The incidents of [their] life, not connected with the crime charged, are [their] sacred possession. [They] face[ ] [their] accuser in the light of a distinct charge, with the assurance that no other will be, or can be, proved against [them]” (Molineux, 168 NY at 310).

These words are no less true and vital today as they were when first written by this

Court in 1901. Over a century later, we reaffirm that no person accused of illegality may

be judged on proof of uncharged crimes that serve only to establish the accused’s

propensity for criminal behavior. At trial, a defendant stands to account for the crimes as

- 39 - - 40 - No. 24

charged. Proof of prior crimes and uncharged bad acts are the rare exception to this

fundamental rule of criminal law.

Similarly, under Sandoval, cross-examination of the defendant with allegations

concerning prior convictions or proof of prior “specific criminal, vicious or immoral acts”

is impermissible except to the extent it bears on the defendant’s credibility. Thus, it is an

abuse of judicial discretion to permit untested allegations of nothing more than bad

behavior that destroys a defendant’s character but sheds no light on their credibility as

related to the criminal charges lodged against them.

The trial court’s rulings ran afoul of these time-honored rules of evidence.

Accordingly, the order of the Appellate Division should be reversed, and a new trial

ordered.

- 40 - SINGAS, J. (dissenting):

Fundamental misunderstandings of sexual violence perpetrated by men known to,

and with significant power over, the women they victimize are on full display in the

majority’s opinion. By whitewashing the facts to conform to a he-said/she-said narrative,

by ignoring evidence of defendant’s manipulation and premeditation, which clouded issues

of intent, and by failing to recognize that the jury was entitled to consider defendant’s

previous assaults, this Court has continued a disturbing trend of overturning juries’ guilty

verdicts in cases involving sexual violence. The Molineux rule—created by this Court—

has never been static. Instead, its use has evolved over time to meet the challenges of

complex criminal prosecutions. Unfortunately, in the context of sexual assault, that

evolution lapses today with a decision that has all but ended the use of Molineux evidence

in such cases. I fully join Judge Cannataro’s dissent but write separately to highlight how

the majority’s determination perpetuates outdated notions of sexual violence and allows

predators to escape accountability.

The overarching issue presented by this case is whether the trial court properly

admitted evidence of defendant’s prior sexual assaults. Whether such Molineux

evidence—i.e., evidence of a defendant’s prior crimes and other bad acts—is admissible is

guided by a two-step analysis. First, a court must consider whether the evidence is relevant

to a material issue other than defendant’s criminal propensity (e.g., intent). If the evidence

is relevant for an appropriate purpose, the court must then determine whether it should be

excluded for other reasons, such as its lack of probative value or risk of undue prejudice

(see People v Denson, 26 NY3d 179, 185-186 [2015]). Remarkably, the majority holds

that the proffered evidence fails at “Step 1,” concluding that evidence of defendant’s past

sexual assaults was irrelevant to this case (majority op at 22). The majority does not hold,

under “Step 2,” that this evidence was too overwhelming, too dissimilar from the charged

crimes, too remote in time, or too prejudicial. Rather, it concludes that additional evidence

of defendant’s intent is not relevant to the issues the jury needed to decide, as a matter of

law, because no rational person could accept the victims’ testimony recounting the violence

committed against them and have any lingering doubts as to defendant’s state of mind.

While the majority’s holding may, at first glance, appear to endorse a utopic vision

of sexual assault prosecution in which a victim’s word is paramount, the reality is far

bleaker. Critically missing from the majority’s analysis is any awareness that sexual

assault cases are not monolithic and that the issue of consent has historically been a

complicated one, subject to vigorous debate, study, and ever-evolving legal standards (see

People v Regan, 39 NY3d 459, 475-482 [2023, Singas, J., dissenting]). By ignoring the

legal and practical realities of proving a lack of consent, the majority has crafted a naïve

narrative: that within the most fraught and intimate settings, intent is readily apparent, and

issues of consent easily ascertained. This conclusion deprives juries of the context

necessary to do their work, forecloses the prosecution from using an essential tool to prove

intent, ignores the nuances of how sexual violence is perpetrated and perceived, and

demonstrates the majority’s utter lack of understanding of the dynamics of sexual assault.

Because New York’s women deserve better, I dissent.

Defendant was charged with one count of criminal sexual act in the first degree, one

count of rape in the first degree, one count of rape in the third degree, and two counts of

predatory sexual assault. An element of each is “that the sexual act was committed without

consent of the victim” (Penal Law § 130.05 [1]). Defendant’s theory throughout the case

was that the victims consented to the sexual acts, and that he had ongoing, quid pro quo

relationships with them. His position was that his victims were using him, a Hollywood

producer of immense stature and influence, to further their careers—that his victims

willingly exchanged sexual favors for professional ones—and the parties shared this

understanding. The defense drew the jury’s attention to the jobs defendant secured for his

victims, the roles they auditioned for, the scripts they sent him, the parties and movie

premieres they asked to attend, and the things he bought for them. In the world the defense

painted for the jury, “[s]he was going to do anything she needed to do to have the career

that she wanted to have.” Simply put, “this is not a sexual assault. This is someone who

agrees to do what has then been discussed.” The manner in which the case was defended

made this point clear—in defendant’s mind, these were consensual transactions and she

“made him believe that [she] wanted to be there.”

Because consent was at the heart of this case, the People necessarily had to

demonstrate a lack of it. The People may prove “that the sexual act was committed without

consent of the victim” through evidence of forcible compulsion (Penal Law § 130.05 [1]). 1

“The intent required is the intent to perform the prohibited act—i.e., the intent to forcibly

compel another to engage” in the sexual act (People v Williams, 81 NY2d 303, 316-317

1 As to third-degree rape, in addition to forcible compulsion, the People may prove a lack of consent under a different subsection by demonstrating that “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances” (Penal Law § 130.05 [2] [d]). -4- -5- No. 24

[1993]).2 A finding of intent to forcibly compel “necessarily” involves a finding “that [a]

defendant[ ] believed the victim did not consent to the sexual activity” (id. at 317 [emphasis

added]).

Accordingly, in order to prove forcible compulsion, the People were required to

demonstrate not only that defendant used force, but that defendant used force believing that

the victim did not consent. Indeed,

“it is possible, albeit unlikely, for a complainant to testify truthfully that she did not consent to sexual intercourse and that the defendant raped her, and the defendant to raise an honest defense of mistake in that he believed she was consenting and, therefore, that he lacked the intent required for rape. Under New York law, a good faith mistake that negates the mens rea necessary to commit a crime is a defense. In such a situation, if the jury believes both parties, it must acquit the defendant” (Richard de Simone & Steven Y. Yurowitz, New York Criminal Law § 7:2 [6 West’s NY Prac Series, Dec. 2023 update] [emphasis omitted]).

The People therefore sought to prove defendant’s “intent to forcibly compel” his victims

(Williams, 81 NY2d at 317)—and necessarily the absence of any mistake as to consent—

through the testimony of witnesses regarding their experiences of nonconsensual

encounters with defendant under similar circumstances. After interviewing “over 100

people,” the prosecution limited their application to five witnesses. The trial court further

winnowed this evidence to three witnesses and granted the People’s application.

2 “ ‘Forcible compulsion’ means to compel by either” the “use of physical force” or “a threat, express or implied, which places a person in fear of immediate death or physical injury to [themselves] or another person, or in fear that [they] or another person will immediately be kidnapped” (Penal Law § 130.00 [8] [a], [b]).

This Court decided People v Molineux (168 NY 264 [1901]) more than a century

ago, “but its foundation remains unchanged: a criminal case should be tried on the facts

and not on the basis of a defendant’s propensity to commit the crime charged” (People v

Rojas, 97 NY2d 32, 36 [2001]; see People v Cass, 18 NY3d 553, 559 [2012]). “ ‘[T]he

familiar Molineux rule states that evidence of a defendant’s uncharged crimes or prior

misconduct is not admissible if it cannot logically be connected to some specific material

issue in the case, and tends only to demonstrate the defendant’s propensity to commit the

crime charged’ ” (Denson, 26 NY3d at 185, quoting Cass, 18 NY3d at 559; see People v

Frumusa, 29 NY3d 364, 369 [2017]). But “evidence of uncharged crimes and prior bad

acts may be admitted to prove the specific crime charged when it tends to establish” a

defendant’s “intent” (Cass, 18 NY3d at 560; see Denson, 26 NY3d at 185) or “state of

mind” (People v Ingram, 71 NY2d 474, 476 [1988]). “Admission of such proof—where

intent cannot be inferred from the act or where [the] defendant claims [they] acted

innocently—is founded on the law of probabilities. The theory is that the more often the

act constituting the crime has been done, the less the likelihood that it could have been

done innocently, as if by chance” (id. at 479). “It is the duplication of the inculpatory

conduct which makes the innocent explanation improbable” (id. at 480; cf. People v Caban,

14 NY3d 369, 375 [2010] [“a defendant who is repeatedly negligent in the same way may

be found to be unable or unwilling to learn from (their) mistakes”]). When “the proffered

Molineux evidence is relevant to” intent, “it is not to be excluded merely because it shows

that the defendant ha[s] committed other crimes” (Cass, 18 NY3d at 560).

Whether Molineux evidence is admissible to prove a defendant’s intent depends on

whether “intent may be easily inferred from the commission of the act itself” (People v

Alvino, 71 NY2d 233, 242 [1987]). Where a defendant’s intent is obvious from the action

itself, evidence that the defendant engaged in similar conduct on prior occasions is not

necessary to shed light on defendant’s state of mind. But “where the act itself is equivocal

and, unless accompanied by some guilty knowledge, the transaction would not be

criminal,” a culpable mental state is not readily inferable from the commission of the act

(id. at 242-243). When “evidence that [the] defendant did the act may allow no ready

inference of [the] defendant’s guilty state of mind” (id. at 243), Molineux evidence may be

admitted as additional proof.

A guilty mens rea may be easily inferred where, for example, a defendant puts a gun

to a victim’s head and pulls the trigger (see People v Katz, 209 NY 311, 328 [1913]) or in

the context of a violent stranger rape, like that in People v Vargas (88 NY2d 856 [1996]).

In Vargas, the defendant followed his victim, a woman he had never met before, into her

apartment building, “pinned her in the corner, threatened to kill her, blindfolded her[,] and

dragged her to the roof landing where he raped and sodomized her” (id. at 857). Under

those circumstances, it is difficult, if not impossible, to ascribe any intention to the

perpetrator other than a guilty one (see People v Leonard, 29 NY3d 1, 8 [2017]

[“defendant’s alleged action of touching the victim’s vagina” while the victim was

unconscious was “not an ‘equivocal’ act capable of being understood” as innocently

committed]).

Intent is not so clear from a defendant’s actions alone, however, when they are

subject to an “innocent explanation” (see Ingram, 71 NY2d at 480). For example, in

Ingram, the defendant was present at a gas station during a robbery and drove the getaway

car. Because the defendant asserted that he was only there to buy gas and had no idea that

his passenger was going to commit a robbery, we held that Molineux evidence of his

involvement in a similar robbery was properly admitted as relevant “to refute [his] claim

of an innocent state of mind” (id.). Rather than limiting the jury to viewing the defendant’s

actions in a siloed context, the jury was permitted to consider his prior criminal behavior

when evaluating whether his presence at the gas station was indeed innocent.

Perhaps the area of criminal prosecution with the most inscrutable mens rea

determination is that of acquaintance sexual assault. 3 As our understanding of

acquaintance assault has grown, the need for Molineux evidence to aid the jury has become

more apparent. These cases require exacting consideration of each party’s mental state at

each stage of the relevant encounters: What did each intend and what did each know of the

other’s intentions? It is within this context that the trial court allowed the jury to hear

instances of defendant’s prior sexual assaults to aid them in determining if defendant

3 The difficulties posed to prosecutions of acquaintance sexual assault are reflected in the lower conviction rates of these crimes as compared to conviction rates of stranger sexual assault (see Kristen McCowan et al., A Rape Myth in Court: The Impact of Victim- Defendant Relationship on Sexual Assault Case Outcomes, 26 Berkeley J Crim L 155, 174 [2021] [“ample research suggests that jurors are far more likely to convict in stranger rape cases than in acquaintance rape cases” (emphasis omitted)]; Claire R. Gravelin et al., Blaming the Victim of Acquaintance Rape: Individual, Situational, and Sociocultural Factors, 9 Frontiers Psych, No. 2422 at 2 [2019] [“acquaintance rape cases have a lower probability of conviction in the courts than those that fit with a stranger rape script”]). -8- -9- No. 24

perpetrated sexual violence or if he indeed thought that he had his victims’ consent to

behave as he did.

“[R]ape is a crime that is permeated by misconceptions” (People v Taylor, 75 NY2d

277, 288 [1990]). Indeed, sexual assault cases are mired in complex relationship and power

dynamics and shadowed by archaic social and cultural attitudes about sexual violence (see

Meagen M. Hildebrand & Cynthia J. Najdowski, The Potential Impact of Rape Culture on

Juror Decision Making: Implications for Wrongful Acquittals in Sexual Assault Trials, 78

Alb L Rev 1059, 1078 [2015] [citing studies which find that jurors with higher levels of

rape myth acceptance are more likely to acquit in sexual assault trials]). The defense sought

to capitalize on these pervasive rape myths, 4 and rape culture at large, asking the jury to

believe that, despite their words and actions, the victims were consenting. Failing to

confront this difficult reality, the majority instead characterizes this case as “boil[ing]

down” to a simple “credibility contest” (majority op at 32). 5 The majority does this despite

4 Rape myths are the “prescriptive beliefs about the scope, causes, context and consequences of sexual aggression that serve to deny, downplay[,] or justify sexually aggressive [behavior] of (usually) men against (usually) women” (see Joseph Briggs & Russ Scott, ‘Rape Myths’ and a ‘Reasonable Belief’ of Consent, 27 Psychiatry Psych & L 750, 765 [2020]; see also Alexa Sardina & Alissa R. Ackerman, Restorative Justice in Cases of Sexual Harm, 25 CUNY L Rev 1, 7-8 [2022]). 5 Even that credibility determination hinges on factors beyond whether the victim has demonstrated herself to be a truthful witness, for the perception of a victim’s credibility is influenced by antiquated expectations of how victims should act, both during the crime and at trial (see generally Deborah Epstein & Lisa A. Goodman, Discounting Women: Doubting Domestic Violence Survivors’ Credibility and Dismissing Their Experiences, 167 U Pa L Rev 399 [2019]; Louise Ellison & Vanessa E. Munro, Reacting to Rape: Exploring -9- - 10 - No. 24

the fact that defendant himself, by orchestrating how these encounters played out, created

the very ambiguity concerning his state of mind that the majority will not allow the People

to negate (see People v Valentin, 29 NY3d 150, 157 [2017]; Cass, 18 NY3d at 561; Ingram,

71 NY2d at 479). Consequently, the majority not only ignores how this case was litigated

but shuts its eyes to the enduring effect of rape culture on notions of consent, and intent.

“[R]esearch across law, sociology[,] and psychology has suggested that jurors may

be influenced in their deliberations by a number of extra-legal stereotypes about

‘appropriate’ socio-sexual [behavior],” including the victim’s conduct “in the lead-up to

the incident” and “the existence of any previous flirtation or intimacy with the defendant”

(Reacting to Rape at 202-203; see Dan M. Kahan, Culture, Cognition, and Consent: Who

Perceives What, and Why, in Acquaintance-Rape Cases, 158 U Pa L Rev 729, 761 [2010]).6

Consequently, what one juror perceives as a “lack of consent” another may not. And when

one juror concludes that a reasonable person in the defendant’s position would have

understood the complainant’s actions as indicating a lack of consent, another may not.

Indeed, defense strategy in sexual assault cases may take advantage, as the defense sought

Mock Jurors’ Assessments of Complainant Credibility, 49 Brit J Criminology 202, 211 [2009]). 6 Rape myth usage is a problem that extends beyond jurors, as one recent study found that “[r]ape myths do appear to be a common and widely used discourse in sexual assault cases” among American state appellate judges (see Holly Boux, “If You Wouldn’t Have Been There That Night, None of This Would Have Happened to You”: Rape Myth Usage in the American Judiciary, 40 Women’s Rts L Rep 237, 259 [2019]).

to do here, of societal misconceptions about sexual violence and enlarge or create

ambiguity around a defendant’s state of mind and what actions a defendant may have

perceived as indicating consent (see ‘Rape Myths’ and a ‘Reasonable Belief’ of Consent at

766; Dominic Willmott et al., Jury Decision-Making in Rape Trials: An Attitude Problem?,

in David A. Crighton & Graham J. Towl, Forensic Psychology 94, 105-106 [3d ed 2021]). 7

Antiquated notions of sexual violence persist, consciously and unconsciously,

throughout our population and within jury pools. This Court has already recognized the

disconnect between our social norms and our professed social values and acknowledged

the influence of toxic rape mythology on jurors’ conceptions of consent (see Taylor, 75

NY2d at 288-289 [holding that expert testimony regarding “rape trauma syndrome” is

admissible under certain circumstances]). Considering the intricacies of the victims’

testimony here, it is clear that there were numerous opportunities for rape myths to

insidiously work their way into the jury’s analysis of defendant’s state of mind and

importantly, into their analysis of whether he reasonably understood that his victims were

conveying a lack of consent.

Ostensibly, we live in a culture where “no means no” and that is the end of the

conversation. In practice, when a woman says “no,” some hear “yes,” “not yet,” or

“convince me” (see Douglas N. Husak & George C. Thomas, III, Rapes Without Rapists:

7 Notably, “the impact of prejudicial attitudes and misconceptions surrounding rape have been so well documented within past research, that judges in England and Wales now routinely instruct jurors in rape trials to avoid drawing upon such myths and extra-legal influence [while] judging the case” (Jury Decision-Making in Rape Trials at 102).

Consent and Reasonable Mistake, 11 Phil Issues 86, 95-96 [2001]; Charlene L.

Muehlenhard & Lisa C. Hollabaugh, Do Women Sometimes Say No When They Mean Yes?

The Prevalence and Correlates of Women’s Token Resistance to Sex, 54 J Personality &

Soc Psych 872, 872 [1988]). Pursuant to the myth that a “no” may actually be an invitation,

some believe that “[a]ggressive or violent tactics are part of the ordinary seduction” (see

Sarah Gill, Note, Dismantling Gender and Race Stereotypes: Using Education to Prevent

Date Rape, 7 UCLA Women’s LJ 27, 46 [1996]). As a result, many view consent as

something to be negotiated, bargained for, or coerced. In one mock jury study evaluating

conceptions of sexual assault and their impact on criminal prosecutions, jurors,

“[f]ocusing on the degree of verbal resistance offered by the complainant, . . . also often questioned whether the complainant had ‘done enough to say no’ in simply telling the defendant to ‘stop’ and ‘get off’ her . . . . Such comments were often accompanied by conjecture that the defendant may have believed—reasonably, in the opinion of many jurors—that the complainant was a willing sexual partner” (see Louise Ellison & Vanessa E. Munro, A Stranger in the Bushes, or an Elephant in the Room? Critical Reflections Upon Received Rape Myth Wisdom in the Context of a Mock Jury Study, 13 New Crim L Rev 781, 791 [2010]).

Jurors consider more than verbal and physical expressions of resistance: they

consider their form and degree, and whether other actions by the victim may have negated

any resistance. Even where a victim “may communicate that he or she does not consent,

the jury may still look for objective signs of non-consent, such as resistance and use of

force” (see Becky Farley, Note, A Perpetrator’s Paradise: Outdated Sexual Assault

Statutes Provide Minimal Protection to Survivors Who are Victimized in Common Sexual

Assault Scenarios, 17 Wyo L Rev 315, 338 [2017]). This very Court once required a victim

to exert “the greatest effort of which she is capable therein, to foil the pursuer” for such

rape to qualify as a legal offense (People v Dohring, 59 NY 374, 383 [1874]). Though

New York has “eliminated resistance as an element of rape, . . . the requirement of

resistance, and the corresponding presumption of consent if resistance is absent, persists”

(see Lisa Avalos, Seeking Consent and the Law of Sexual Assault, 2023 U Ill L Rev 731,

735 [2023]). Even where a victim asserts physical resistance, “jurors continue to be

skeptical” where the victim “did not resist to their satisfaction” (I. Bennett Capers, Real

Women, Real Rape, 60 UCLA L Rev 826, 863 [2013]). And even where a victim asserts

physical and verbal resistance, jurors will consider whether the victim ceased resistance at

some point. While decades of research informs us that this is an entirely normal response

to the trauma of sexual violence (see Sunda Friedman TeBockhorst et al., Tonic Immobility

Among Survivors of Sexual Assault, 7 Psych Trauma: Theory Rsch Prac & Poly 171

[2015]), the problematic belief persists that a victim’s “freezing up” during the encounter

is indicative of consent (Jen Percy, What People Misunderstand About Rape, NY Times,

Aug 22, 2023, available at https://www.nytimes.com/2023/08/22/magazine/immobility-

rape-trauma-freeze.html [last accessed Apr. 15, 2024]).

Jurors also consider whether the victim’s other actions “sen[t] coded signals of

sexual interest,” including whether the victim willingly met her attacker and, if so, whether

it was in a private, intimate setting (see Reacting to Rape at 207). Victims of color are

especially disadvantaged, through the intersection of rape and racial mythology, by harmful

stereotypes that ascribe heightened sexuality to these victims (see Real Women, Real Rape

at 863-865; Darren Lenard Hutchinson, Ignoring the Sexualization of Race:

Heteronormativity, Critical Race Theory and Anti-Racist Politics, 47 Buff L Rev 1, 84-86,

89, 93-96 [1999]) and characterize them as “ ‘less harmed by an assault’ ” (Real Women,

Real Rape, at 867, quoting Gary D. LaFree et al., Jurors’ Responses to Victims’ Behavior

and Legal Issues in Sexual Assault Trials, 32 Soc Probs 389, 401-402 [1985]).

Additionally, jurors will look to the nature of the parties’ relationship and, specifically,

whether they had consensual sexual encounters in the past which “provides an opening

through which judgments about the (mis)communication of signals of sexual interest are

introduced” (A Stranger in the Bushes at 789). The “generalized consent” concept

postulates that “consent to prior sexual intercourse either indicates consent to subsequent

intercourse or suggests a greater likelihood that the defendant reasonably believed the

victim consented to the later encounter. This notion effectively creates a presumption of

consent to sexual intercourse on any specific occasion that the victim must somehow

negate” (Note, Acquaintance Rape and Degrees of Consent: “No” Means “No,” But What

Does “Yes” Mean?, 117 Harv L Rev 2341, 2342 [2004] [footnote omitted]). 8

8 The growing movement toward an affirmative consent standard, or a “yes means yes” standard, reflects the shortcomings of a system which requires a victim to proactively express a lack of consent (see generally Eric Sandoval, The Case for an Affirmative Consent Provision in Rape Law, 94 ND L Rev 455 [2019]; Michelle Lewis, Note, University Adjudication of Sexual Assault: How Affirmative Consent Can Help Close the Gap, 23 Sw J Intl L 351 [2017]; Chandler Delamater, Note, What “Yes Means Yes” Means for New York Schools: The Positive Effects of New York’s Efforts to Combat Campus Sexual Assault Through Affirmative Consent, 79 Alb L Rev 591 [2016]). Recognizing that the public’s varied opinions regarding the method and manner in which victims must express their lack of consent clouds these issues, the legislature enacted a requirement that New York colleges and universities adopt an affirmative consent standard in their codes of conduct (Education Law § 6441 [1]). If the majority’s unrealistic view of how consent

- 14 - - 15 - No. 24

The majority misses this point entirely when it draws exaggerated, and frankly

confounding, parallels between the facts of this case and those in Vargas. The sexual

violence in Vargas, as described earlier, fits within the prototypical construct of “real”

rape—“a sudden, surprise attack by an unknown, often armed, sexual deviant [which]

occurs in an isolated, but public, location, and the victim sustains serious physical injury,

either as a result of the violence of the perpetrator or as a consequence of her efforts to

resist the attack” (A Stranger in the Bushes at 783). “Real” rape does not implicate the

same issues as acquaintance assaults. Indeed, here, because the victims know defendant,

they are forced to contend with heightened scrutiny of their actions that draws on the

problematic rape myths delineated above (see Nicholas J. Little, Note, From No Means No

to Only Yes Means Yes: The Rational Results of an Affirmative Consent Standard in Rape

Law, 58 Vand L Rev 1321, 1332-1333 [2005] [explaining why jurors are more likely to

believe claims of non-consent in cases of “real” rape]). 9 Casting this case and Vargas in

the same light allows the majority to conclude that it is as easy for this jury to find that the

victims were raped as it was for the jury in Vargas to draw that same conclusion.

plays out in intimate settings were true, this legislative action and other ongoing conversations around consent standards would be largely unnecessary. 9 The impact of these rape myths on whether a victim receives justice goes beyond what happens in the courtroom and affects a victim’s decision of whether to report the crime in the first instance (see Jessica Woodhams et al., Behavior Displayed by Female Victims During Rapes Committed by Lone and Multiple Perpetrators, 18 Psych Pub Poly & L 415, 418 [2012]; Kathleen Daly & Brigitte Bouhours, Rape and Attrition in the Legal Process: A Comparative Analysis of Five Countries, 39 Crime & Just 565, 572-573 [2010]).

This discussion of rape myths is not merely theoretical. Beyond being deeply rooted

societal attitudes that jurors have to grapple with, the defense encouraged the jurors to

apply these attitudes to the facts of this case. Defense counsel emphasized to the jury that

Victim B, according to her own testimony, did not exert physical resistance in that she did

not “tr[y] to push [defendant] off of her in any way.” Defense counsel further implored

the jury to adopt the mindset that Victim B’s initial verbal resistance was disingenuous or

fleeting. Victim B testified that she initially told defendant, “We don’t have time,”

consistent with her testimony that “[o]ftentimes before we would engage in something

sexual, there was a negotiation and me trying not to do something.” But defense counsel

emphasized that Victim B stopped saying no quickly after the encounter began and then,

according to her testimony, “what does she do? Gets naked and lays on the bed.” The

prosecution further had to contend with the fact that Victim A also ceased resistance at

some point; that, according to her testimony, she “checked out” and “endure[d] it.”

Defense counsel also argued that the victims’ actions demonstrated their sexual

interest. Playing on the myth of generalized consent, the defense hinted or outright asserted

that the victims had prior, consensual sexual encounters with defendant. Defense counsel

stated that Victim A had been “to Harvey’s apartment alone to spend time with him” one

night and “[t]hey ha[d] a nighttime meeting in a bar [on another]. . . . I want you to think

about what that meeting was really about.” With respect to Victim B, the defense posed,

“[W]hy does [defendant] get a room at the Doubletree? . . . [B]ecause he was going to see

the woman he was having a sexual relationship with.” The defense noted their past sexual

- 16 - - 17 - No. 24

encounters, asking Victim B about a time that she had “put lotion in [her] hand and put it

on [defendant’s] back . . . [w]hile he is laying on the bed” on one occasion. The defense

further asked Victim B whether she “never wanted to have sex with” defendant and was

“lying to [defendant] every single time [she] engaged in sexual activity with him that [she]

didn’t want to have” and whether she was lying when she had previously told defendant

that one encounter was “the best [she] ever had.” Counsel concluded, “Well, you made

him believe that you wanted to be there, isn’t that right?” “You are allowing all this to

happen . . . . Manipulating him to make him think that you wanted to see him by sending

him e-mails, by going to meet with him and by engaging in consensual sexual acts?” “As

manipulated as you felt, you manipulated Harvey Weinstein every time you continued to

see him after each individual sexual encounter.” The defense asked her, “You decided to

go out with a married man, correct? . . . You decided to have sexual relations with [him]?”

Defense counsel also emphasized that both victims willingly met defendant in the intimate

settings of his apartment or hotel. Indeed, when asking Victim A “about [her] decision to

go over to the Soho apartment,” the defense confirmed, “Well, you did go there, correct?”

“[Y]ou decide[d] to go?” With regard to Victim B, defense counsel asked, “[Y]ou didn’t

make the choice to walk out the door? . . . You made the choice to go up to the hotel

room?”

Defendant’s quid pro quo theory inserted another innocent explanation of

defendant’s conduct for the jury to consider and put the professional favors that defendant

granted his victims at the forefront of the case. Regarding Victim A, the defense asserted

that “[s]he cared [about her relationship with defendant] because she was using him for

jobs. She cared because she wanted him to fly her places.” Defense counsel reiterated that

defendant secured a production position for Victim A on his company’s television show;

that the day after the incident, Victim A flew to Los Angeles on a ticket paid for by

defendant’s company; and that she traveled back to New York two weeks later, again on

defendant’s company’s dime. Regarding Victim B, the defense asserted that she was using

defendant for her career and “we know that’s exactly what she was doing.” “[S]he made a

choice that she wanted to be in his world. She made a choice she wanted the life that he

could potentially provide for her.” Defense counsel told the jury that on the day of the

incident with Victim B, she did a reading for the opportunity to be cast in one of defendant’s

movies. Additionally, defendant came to the hotel the morning of the rape at the request

of Victim B, to do her a favor and meet her friend who was an agent in the industry. The

defense asked Victim B, “[Y]ou didn’t want that stigma” of “sleeping with Harvey

Weinstein . . . [b]ut you wanted the benefit of what the action got you?” This line of

questioning suggested to the jury that because defendant offered professional rewards, the

sex was necessarily consensual.

Confronted with the defense’s arguments, it was entirely possible for the jury to

believe the victims’ accounts of defendant’s actions while at the same time accepting

defendant’s assertion that he believed this was a consensual transaction. In this

circumstance, even if the jury believed the victims when they said that they resisted, it

would have to acquit defendant. Nonetheless, the majority holds that the facts here were

simple to parse, and that defendant’s prior sexual assaults (where his quid pro quo

understanding failed) were irrelevant to the issues of intent and consent.

Viewed in proper context, in light of our contemporary understanding of

acquaintance sexual violence, the proffered Molineux testimony unquestionably had a

“natural tendency to disprove defendant’s specific claim as to h[is] state of mind” (People

v Bradley, 20 NY3d 128, 134 [2012] [internal quotation marks and some brackets omitted])

and “make[ ] the innocent explanation improbable” (Ingram, 71 NY2d at 480). As the

unanimous Appellate Division aptly explained, the Molineux witnesses

“described an arc of events where defendant met her, flattered her by expressing his willingness to help her advance her career in Hollywood, and then put in motion a plan where he could be alone with her. As soon as it was opportune, he made an overt sexual advance for which there was no indication that there was consent” (207 AD3d 33, 65 [1st Dept 2022]).

The evidence thus demonstrated “that defendant did not see the women as romantic

partners or friends, and that his interest in them and their talents was feigned” (id.). Further,

“defendant’s goal at all times was to position the women in such a way that he could have

sex with them, and that whether the women consented or not was irrelevant to him” (id.).

These Molineux witnesses’ negative reactions to defendant’s sexual advances

elucidated for the jury that defendant was fully aware that he could not assume consent

simply because women crossed the threshold to his apartment or hotel room. Their

testimony explained the idiosyncrasies of the entertainment industry that allow assaults to

be perpetrated by influential and powerful men against young and relatively powerless

aspiring actresses, such that the jury could better assess how defendant would have

perceived the victims’ actions. The evidence showcased a “repetition, duplication[,] and

similarity of defendant’s acts” which has “a direct bearing on the question of premeditated

intent” (Cass, 18 NY3d at 563).

“[T]he reason defendant invited the victim[s] to his apartment” or hotel room

necessarily informed the jury’s analysis of “whether he had the requisite intent, i.e.,” the

intent to forcibly compel his victims to engage in sexual acts (see Denson, 26 NY3d at

186). The People’s theory was that defendant orchestrated these moments to be alone with

women in an intimate setting, “lured in on false promises of professional help” to a private

location commonly used for business meetings in the entertainment industry, in order to

sexually assault them. But defendant posited the innocent explanation that he was simply

following through on a mutually agreed upon rendezvous for a consensual quid pro quo

exchange and they came to his hotel room or apartment fully aware it was to have sex with

him. Indeed, referencing one such meeting, defense counsel skeptically asked Victim A,

“You wanted to pitch a project to [defendant]? . . . You wanted to meet with him in a hotel

room and pitch a project to him?” The Molineux witnesses’ testimony went to the heart of

this issue and, notably, explained for the jury the unique facet of the entertainment industry

in which screen tests and meetings would often occur in these intimate settings. Moreover,

because they rejected his sexual advances in similar situations, the People could use this

testimony to undermine defendant’s quid pro quo theory.

In sum, the facts of this case are equivocal, and defendant’s state of mind subject to

numerous interpretations—layer after layer of nuance, opportunity after opportunity for

rape culture to rear its ugly head. Properly considering the realities against which sexual

assault cases are presented to a jury, and the myriad of experiences, beliefs, and attitudes

that jurors bring with them into the courtroom, it is clear that a jury could fully accept the

victims’ recounting of events and still find defendant did not possess the requisite mens

rea. As such, defendant’s culpable state of mind was not so easily inferred, and the

Molineux evidence was admissible to aid the jury’s understanding of his intent. The fact

that the jury convicted defendant of third-degree rape against Victim B but acquitted him

of first-degree rape lays bare the majority’s error, and refutes its theory that, if it accepted

Victim B’s testimony, the jury would have to find forcible compulsion and convict

defendant of first-degree rape. Ultimately, it is the rejection of any subtlety in this case

which leads the majority to its erroneous conclusion that resolving defendant’s intent

merely involved a binary choice—believe the victims’ testimony and convict defendant or

disbelieve it and acquit—and that any other evidence on that topic was “irrelevant” to

anything but defendant’s criminal propensity (see majority op at 2, 30). But how can this

issue be “irrelevant” when defendant’s very theory rests on the perceived consent flowing

from the quid pro quo nature of these sexual encounters?

The majority references the testimony of the People’s expert witness which offered

the jury critical information to dispel some of the rape myths identified above, including

misconceptions about victims exerting verbal and physical resistance to an attacker. But

the majority falls on the sword it claims to wield against rape myths when it claims that the

expert’s testimony negates the need for Molineux evidence here. The majority

acknowledges that the expert provided testimony relevant to explain “what some jurors

might have seen,” as a result of misconceptions about sexual violence, “as counterintuitive

acts by complainants” and thus acknowledges that the victims’ actions could be perceived

as unclear (majority op at 27). This inevitably raises the question: if it was appropriate to

introduce this testimony to address the equivocality of the victim’s actions, why was it not

appropriate to introduce evidence to address how the defendant may or may not have

perceived the equivocality of the victim’s actions?

Moreover, the majority’s conclusion that the Molineux evidence was not necessary

because the People had other evidence to dispel rape mythology—specifically, the expert

testimony and the “testimony from multiple complainants”—further demonstrates its

misunderstanding of Molineux (see majority op at 28-29). Whether Molineux evidence is

cumulative is patently not an appropriate consideration under “Step 1,” because it has no

bearing on whether defendant’s state of mind was open to multiple interpretations and thus,

on whether the evidence was relevant (see People v Hudy, 73 NY2d 40, 55 [1988]). Given

that the majority disposes of the trial court’s Molineux ruling on “Step 1,” the majority

renders its own discussion of “Step 2” considerations, such as the probative value of the

Molineux evidence or its prejudicial impact, academic. Additionally, “it is immaterial that

the People could establish a prima facie case without the disputed [Molineux] evidence.

They were not bound to stop after presenting minimum evidence but could go on and

present all the admissible evidence available to them” (Alvino, 71 NY2d at 245).

Sexual assault cases necessarily require a jury to understand a defendant’s

awareness of a victim’s lack of consent. Proof of this intent falls within the core class of

evidence that Molineux took great care to distinguish from evidence simply demonstrating

a defendant’s criminal propensity. But today, this Court elides these two categories,

effectively foreclosing the introduction of Molineux evidence in sexual assault cases and

denying juries relevant evidence. Demonstration of a defendant’s culpable state of mind

is often a difficult task in any prosecution (see Ingram, 71 NY2d at 479). But where jurors

enter a courtroom to adjudicate a sexual assault case, carrying with them deeply entrenched

attitudes toward sexual violence, this can be a most daunting task. The Molineux intent

exception was designed to combat such evidentiary challenges.

The majority appears oblivious to, or unconcerned with, the distressing implications

of its holding. Men who serially sexually exploit their power over women—especially the

most vulnerable groups in society—will reap the benefit of today’s decision. Under the

majority’s logic, instances in which a trafficker repeatedly leverages workers’

undocumented status to coerce them into sex, or a restaurant manager withholds tips from

his employees unless they perform sexual acts becomes a series of individual “credibility

contests” and unrelated “misunderstandings.” After today’s holding, juries will remain in

the dark about, and defendants will be insulated from, past criminal acts, even after putting

intent at issue by claiming consent. Ultimately, the road to holding defendants accountable

for sexual assault has become significantly more difficult.

With today’s decision, this Court continues to thwart the steady gains survivors of

sexual violence have fought for in our criminal justice system (see People v Cerda, 40

NY3d 369 [2023] [reversing a first-degree sexual abuse conviction against a child victim

by rejecting the trial court’s application of the Rape Shield Law]; Regan, 39 NY3d 459

[reversing a first-degree rape conviction on an expanded application of pre-indictment

delay doctrine and dismissing the indictment]). Forgotten are the women who bear the

psychological trauma of sexual violence and the scars of testifying again, and again. This

erosion of precedent, born from a refusal to accept that crimes of sexual violence are far

more nuanced and complex than other crimes, comes at the expense and safety of women.

Until we recognize and account for these differences, we cannot claim to dispense fairness

and justice for all.

- 24 - CANNATARO, J. (dissenting):

The adjudication of sex crimes occupies a challenging space in the evolution of

American criminal law. Rooted in centuries of deeply patriarchal and misogynistic legal

tradition, progress toward a more enlightened and evidence-based approach to the

prosecution of rape and related crimes perpetrated predominantly against women has been

both challenging and sporadic, with most meaningful progress achieved only over the past

50 years (see People v Regan, 39 NY3d 459, 475-482 [2023] [Singas, J. dissenting]).

Today’s majority decision represents an unfortunate step backwards from recent advances

in our understanding of how sex crimes are perpetrated and why victims sometimes

respond in seemingly counterintuitive ways, endangering decades of progress in this

incredibly complex and nuanced area of law. I must therefore dissent.

As the jury heard in this case through the testimony of the People’s expert witness

in the area of rape trauma, a commonly held misconception is that the majority of sex

offenses involve an assault perpetrated against a woman by an unknown male—the

stereotypical stranger in a dark alley who isolates his victim or waits for her to be alone

before launching a violent assault. But, as the jury also heard in this case, we now know

that most sex crimes are perpetrated by acquaintances—sometimes intimate

acquaintances—of the victims. These crimes present a host of difficulties in terms of

producing competent proof of guilt, as the victims frequently delay reporting, especially to

the authorities, and often maintain relationships with their abusers out of fear, manipulation

or the prospect of societal opprobrium.

These complex psychological and sociological dynamics were at play here. The

trial court permitted the People to introduce the testimony of three additional women who

had been subjected to the same kind of manipulation and intimidation by defendant, so that

the jury could gain a better understanding of his intent and his knowledge of their lack of

consent. This evidence, which, as the verdict demonstrates, was carefully parsed by the

jury, is the type of evidence that our well-developed Molineux jurisprudence permits. The

trial court also ruled that if defendant chose to testify, the People could cross-examine

defendant on three categories of prior bad acts that established defendant’s willingness to

advance his own interests at the expense of others, and was therefore directly relevant to

the jury’s assessment of defendant’s credibility. The trial court’s Molineux and Sandoval

rulings reflect sensitivity to the nature of the charges, the circumstances of the case, and

potential prejudice from admission of the proffered evidence. There was no abuse of

discretion in either ruling. The Appellate Division order should be affirmed.

Under our well-settled Molineux rule (People v Molineux (168 NY 264 [1901]),

“[e]vidence of a defendant’s prior bad acts may be admissible when it is relevant to a

material issue in the case other than defendant’s criminal propensity” (People v Dorm, 12

NY3d 16, 19 [2009]). We have set forth an illustrative list of permissible uses for such

evidence, including to prove a defendant’s motive or intent (see id.). Where there is a

proper nonpropensity purpose for the evidence at issue, “it is not to be excluded merely

because it shows that the defendant had committed other crimes” (People v Cass, 18 NY3d

553, 560 [2012]). Rather, its admissibility “rests upon the trial court’s discretionary

balancing of probative value and unfair prejudice” (Dorm, 12 NY3d at 19). “[U]nder our

Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible

and, from there, carve out exceptions” (People v Resek, 3 NY3d 385, 390 [2004]). This

rule of exclusion, however, “is not an absolute . . . [and] gives way when evidence of prior

crime is probative of the crime now charged” (People v Ventimiglia, 52 NY2d 350, 359

[1981]; People v Allweiss, 48 NY2d 40, 46-47 [1979]).

We have recognized that “[e]vidence 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. 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”

(People v Alvino, 71 NY2d 233, 242 [1987] [citations omitted]). Stated otherwise, proof

of other crimes may be admissible “[w]hen defendant’s criminal intent cannot be inferred

from the commission of the act or when defendant’s intent or mental state in doing the act

is placed in issue” (People v Ingram, 71 NY2d 474, 479 [1988]).

Here, prior to trial, the court granted the People’s application to introduce three

categories of Molineux evidence. The first category permitted complaining witness B to

testify that defendant committed two uncharged instances of sexual assault against her—

one before and one after the charged offense. The second category permitted three

additional witnesses to testify that defendant committed sex offenses against them under

similar circumstances to the charged offenses. Under the third category, complaining

witnesses A and B were permitted to testify about their observations of defendant’s

threatening, abusive and manipulative conduct toward others.

The evidence in the first and third categories was properly admissible in the exercise

of the trial court’s discretion under our settled Molineux jurisprudence. As to the first

category, a prior assault by a defendant that is observed or experienced by the victim can

-4- -5- No. 24

be admissible on the issue of the victim’s state of mind—consent and use of force—and to

explain a delay in reporting (see People v Tas, 51 NY2d 915, 916 [1980]). Moreover,

“when appropriate—as here, in light of the [intimate] relationship between defendant and

complainant—evidence of a defendant’s prior abusive behavior toward a complainant may

be admissible to prove the element of forcible compulsion in a rape case” (People v Cook,

93 NY2d 840, 841 [1999]). With respect to the third category, testimony by the

complaining witnesses about their observations of other bad acts by defendant was relevant

to explain their delayed disclosure (see People v Nicholson, 26 NY3d 813, 829-830

[2016]). There was no error or abuse of discretion in the trial court’s admission of either

of these categories of Molineux. The majority does not contend otherwise.

The category of evidence subject to dispute is the admission of the testimony from

the three additional Molineux witnesses. In their Molineux application, the People initially

sought to call five additional witnesses in their case-in-chief, arguing that their testimony

was relevant to the contested issues of lack of consent and forcible compulsion. The court

precluded the People from introducing testimony from two of the proposed witnesses but

otherwise granted the application. The trial court permitted these additional witnesses to

testify to rebut defendant’s claim of consent and to demonstrate his intent to forcibly

compel the complaining witnesses to engage in sexual acts with him—specifically, by

engineering situations in which he could be alone with women, through an offer of

professional assistance, giving the encounters the ostensible appearance of being

consensual. Consistent with this ruling, the court gave the jury limiting instructions as to

the purpose of the Molineux witnesses’ testimony—that these witnesses were not the

complaining witnesses in the case and that their testimony “was not offered and must not

be considered for the purpose of proving that the defendant had a propensity or

predisposition to commit the crimes charged in this case. It was offered as evidence for

your consideration on the issues of forcible compulsion and lack of consent.”

When a defendant’s intent in a sexual assault case is unequivocal, it is improper to

introduce evidence that he has previously committed other similar acts (see People v

Leonard, 29 NY3d 1, 8 [2017]). The majority views this as one of those cases, pointing

out that there was testimony from complaining witness B that would have allowed the jury

to conclude—as it did—that she did not consent to sexual contact with defendant with

respect to the charged offense. However, there was also testimony that allowed defendant

to argue that he reasonably believed she consented—specifically, that she undressed, lay

down on the bed and waited for him to come out of the bathroom. Although the majority

finds it “inconceivable” that the jury could believe the complaining witness and still find

that defendant reasonably believed she consented (majority op at 23-24), that is the precise

argument defendant made to the jury and it is the argument the People had to rebut. 1 The

majority’s approach fails to account for the nuances present in a relationship of this type.

Given the witness’s description of the encounter and their consensual sexual activity both

before and after the charged offense, the lines simply were not that clear.

1 Defense counsel argued in summation that, “even if we look at her testimony and her testimony alone about what happened there that night or that day. Even if you believe every word she says about what happened in that hotel room, it does not rise to the level of a rape.”

Thus it follows that People v Vargas (88 NY2d 856, 858 [1996]), involving a sexual

encounter between strangers where “two starkly contrasting scenarios were presented, with

only credibility in issue,” is not controlling. In that case, the jury could have either believed

the victim’s testimony that the interaction was a violent sexual assault by a stranger, or

credited the defense that it was a consensual sexual encounter. There was no ambiguity

stemming from the context of an ongoing relationship (see e.g. Cook, 93 NY2d at 841) and

the defendant’s intent could easily be inferred from the act itself. We therefore held that

the evidence of the defendant’s prior sexual misconduct was inadmissible because it “was

relevant only to lend credibility to complainant by suggesting that, because defendant had

engaged in sexual misconduct with others, he was likely to have committed the acts

charged” (88 NY2d at 858; see also People v Hudy, 73 NY2d 40, 56 [1988], abrogated on

other grounds by Carmell v Texas, 529 US 513 [2000]).

Here, particularly with respect to complaining witness B, with whom defendant had

an intimate relationship, those stark contrasts were not presented. 2 With complaining

witness B, defendant’s intent was squarely in issue and, given the context of their ongoing

relationship, the nature of defendant’s actions was “subject to varying interpretations”

(People v Bagarozy, 132 AD2d 225, 236 [1st Dept 1987]). That is, there is no doubt that

he intended to have sexual contact with both victims, but there was considerable ambiguity

2 Even if the testimony could be deemed inadmissible on the issue of forcible compulsion as to complaining witness A, it was still admissible as to complaining witness B, as well as to defendant’s knowledge of complaining witness A’s lack of consent. Defendant failed to preserve any argument with respect to the “imprecision of the court’s limiting instructions” as to complaining witness A (see Ingram, 71 NY2d at 478 n 1; People v Cohen, 5 NY2d 282, 290 [1959]). -7- -8- No. 24

as to whether he intended to force himself on complaining witness B against her will, a

conclusion that the jury ultimately rejected. In these circumstances, the People were

permitted to introduce evidence that these were not transactional “quid pro quo”

interactions made in exchange for defendant’s professional assistance, but were situations

devised by defendant to engage in sexual activity regardless of whether the victims

consented.

“Because there [was] a proper nonpropensity purpose, the decision whether to admit

evidence of defendant’s prior . . . acts rests upon the trial court’s discretionary balancing

of probative value and unfair prejudice” (People v Brewer, 28 NY3d 271, 276 [2016]).

Evidence that is probative of a defendant’s guilt will always be prejudicial to some degree,

“[b]ut the probative value of a piece of evidence is not automatically outweighed by

prejudice merely because the evidence is compelling” (id. at 277). It is also important to

note that the jury acquitted defendant of the top three counts—two counts of predatory

sexual assault and one count of first-degree rape—all of which required proof of forcible

compulsion, one of the permissible uses of the testimony from the Molineux witnesses.

This at least suggests that the Molineux evidence did not overwhelm the jury or poison the

panel against defendant. There was no abuse of discretion as a matter of law in the trial

court’s determination with respect to the balancing of probative value against prejudicial

effect.

Under People v Sandoval, the trial court may permit the People to cross-examine a

defendant who chooses to testify with evidence of the defendant’s “prior convictions” and

any “vicious or immoral acts” that bear on the defendant’s credibility (34 NY2d 371, 374

[1974]). The trial court makes this determination by balancing “the probative worth of

[the] evidence” with respect to defendant’s credibility against “the risk of unfair prejudice

to the defendant, measured both by the impact of such evidence if it is admitted after his

testimony and by the effect its probable introduction may have in discouraging him from

taking the stand on his own behalf” (id. at 375). Prejudice to the defendant must also be

considered against “the potential prejudice to the prosecution and the fact-finding process

of denying the jury access to probative, perhaps even crucial, evidence of the defendant’s

credibility” (People v Bennette, 56 NY2d 142, 147 [1982]). While such proof should be

excluded where its sole purpose is to demonstrate that a defendant’s generally bad or

criminal character makes it more likely that they committed the charged offense, it “should

be admitted if the nature of such conduct or the circumstances in which it occurred bear

logically and reasonably on the issue of credibility” (Sandoval, 34 NY2d at 376). Bad acts

that show “[a] demonstrated determination deliberately to further self-interest at the

expense of society or in derogation of the interests of others go[] to the heart of honesty

and integrity” and are “relevant to suggest [a] readiness to do so again on the witness stand”

(id. at 377).

The quantum of evidence admitted under Sandoval will depend on the nature of the

charged conduct and the history of the individual defendant. There was much to work with

here: The volume of evidence in the People’s Sandoval application encompassed three

categories of prior bad acts relevant to defendant’s credibility, including general “bad acts,”

uncharged sexual assaults (some similar to the charged offenses), and defendant’s abusive

behavior towards others. Asserting that the credibility of the respective parties was the

“critical and ultimate issue” in the case, the People argued that these proffered acts

demonstrated, as Sandoval material must, that defendant would put his own interests above

those of society.

The trial court, best positioned to assess the admissibility of such proof based on

“the facts and circumstances of the particular case before it” (People v Hayes, 97 NY2d

203, 207 [2002]), was cognizant of the effect this type of evidence could have upon a jury

(see People v Walker, 83 NY2d 455, 459 [1994]). The trial court carefully considered each

proffered act and its potential for prejudice, excluding the most prejudicial portions—

allegations by nontestifying witnesses relating to sexual misconduct—as “too prejudicial,”

as well as other acts deemed too remote in time, too general, or too similar to the charged

offenses. The court also limited questioning on certain acts, permitting the People to

question defendant about instances demonstrating a willingness to further his own interests

at the expense of others while at the same time precluding the People from asking defendant

about portions of those acts that had to do with sexual misconduct. Applying our well-

settled jurisprudence, the Appellate Division concluded that the trial court’s ruling was a

provident exercise of its discretion (see 207 AD3d 33, 69 [1st Dept 2022]).

In our prior cases, our inquiry would end there. Until today, we considered the

Sandoval ruling a “largely, if not completely [] discretionary determination for the trial

courts and fact-reviewing intermediate appellate courts,” and would only intervene where

“the trial court ha[s] either abused its discretion or exercised none at all” (Walker, 83 NY2d

at 458-459 [quotation marks and citations omitted]). And until this case, claims which

present “nothing more than a disagreement with the ultimate outcome of the trial court’s

discretionary balancing determination . . . d[id] not furnish a cognizable ground for

intervention by this Court” (id. at 459).

Today, the majority intervenes for this defendant, reassessing the proof, making its

own unwarranted balancing of interests, and essentially exercising the discretion heretofore

reserved for the trial court.3 Purporting to follow Sandoval “and its progeny” (majority op

at 35), the majority ignores that we have consistently “declined to prescribe fixed rules

prohibiting or allowing the use for credibility purposes of prior offenses based solely upon

the potentially inflammatory impact of the crime or the victim involved” (Bennette, 56

NY2d at 147) and have never approved “per se rules requiring preclusion because of the

age, nature and number of a defendant’s prior crimes” (Walker, 83 NY2d at 459). Even

where “the trial court might have been more discriminating” (People v Williams, 12 NY3d

726, 727 [2009] [quotation marks and citation omitted]), the sheer number of prior bad acts

and the fact that some were remote in time “are matters of substance that may properly be

considered by the trial court but are not appropriate bases for this Court to second-guess

the trial court’s conclusion” (Walker, 83 NY2d at 459).

3 The majority also appears to quietly endorse a new requirement that material admitted under Sandoval be limited to acts that amount to criminal conduct, arguing that “[d]efendant had no criminal history” and that the admitted acts included those “not criminal in nature” (majority op at 35). This would amount to a significant and novel limitation on Sandoval, one which the language of Sandoval itself prohibits (see Sandoval, 34 NY2d at 373; see also People v Kennedy, 47 NY2d 196, 205 [1979] [Sandoval considerations “are to be applied to cross-examination into alleged immoral, vicious, or criminal acts, regardless of whether those acts resulted in convictions”]). - 11 - - 12 - No. 24

The majority concludes that proffered evidence—acts the majority describes as

“appalling, shameful, repulsive conduct”—would “only diminish defendant’s character

before the jury” and the trial court’s ruling would “legitimize destroying a defendant’s

character under the guise of prosecutorial need” (majority op at 35). But “a criminal

defendant who chooses to testify, like any other civil or criminal witness, may be cross-

examined regarding prior crimes and bad acts that bear on credibility, veracity or honesty,

. . . even in the sensitive area of sex offenses” (Hayes, 97 NY2d at 207-208; see also

Bennette, 56 NY2d at 147-148 [rejecting lower court’s “inflexible rule prohibiting the

prosecutor from impeaching the defendant’s credibility by cross-examination on prior

sexual offenses” and explaining that “(a) person ruthless enough to sexually exploit a child

may well disregard an oath and resort to perjury if he perceives that to be in his self-

interest”]). Despite this longstanding approach, the majority instead inverts Sandoval (see

34 NY2d at 376 [“specific criminal, vicious or immoral conduct should be admitted if the

nature of such conduct or the circumstances in which it occurred bear logically and

reasonably on the issue of credibility”] [emphasis added]), rolling back the People’s ability

to present relevant evidence that bears directly on defendant’s credibility in the name of

preserving defendant’s “character before the jury” (majority op at 35). Much like the

majority’s grave error with respect to the Molineux testimony, the majority fails to

understand the importance of this particular form of credibility evidence in a case where

defendant seeks to convince the jury that he had consent and that his accusers are simply

lying.4

Order reversed and a new trial ordered. Opinion by Judge Rivera. Chief Judge Wilson and Judges Barros and Clark concur. Judge Singas dissents in an opinion, in which Judges Garcia and Cannataro concur. Judge Cannataro dissents in a separate dissenting opinion, in which Judges Garcia and Singas concur. Judges Troutman and Halligan took no part.

Decided April 25, 2024

4 I agree that defendant’s remaining arguments are without merit for the reasons stated by the Appellate Division. - 13 -