PEOPLE v. COTTO (2019)

This matter comes before the Court on the Defendant's motion for a mistrial based on alleged Molineux violations during the direct testimony of two (2) of the People's witnesses or, in the alternative, allowing for a curative limiting instruction to the jury regarding the statements made by the People's witnesses. The Defendant made these motions before the Bench during a sidebar conference on June 12, 2019.

The Defendant herein is charged with Criminal Possession of a Weapon in the Second Degree pursuant to Penal Law § 265.03(3), and Tampering with Physical Evidence pursuant to Penal Law § 215.40(2). These charges stem from the Defendant's alleged possession of a loaded handgun that was allegedly thrown out of the window of his moving vehicle prior to a traffic stop by the Village of Monticello Police Department. As relevant herein, loose marijuana and a blunt wrapper with a broken glass mason jar were found near the road in a private driveway also near the handgun and were taken into evidence. The Defendant was not charged with any crimes related to the marijuana found at the scene of the handgun. No marijuana was found on the Defendant's person nor in his car.¹

On March 7, 2019 and March 11, 2019, this Court held pre-trial suppression hearings and heard the testimony of Sullivan County Sheriff's Deputy Anthony DiSantos, Village of Monticello Police Officer Michael Napoli, Village of Monticello Detective Sergeant Michael G. Davis, and Sullivan County District Attorney's Office Investigator Gerald Deitz. The People provided the Defendant with Rosario materials prior to the commencement of the hearings. These hearings did not include any Molineux testimony regarding the loose marijuana and blunt wrapper. The Defendant's suppression application was denied, except that the People would not be able to inform the jury that the Defendant was taken into custody as a fugitive from justice due to an outstanding warrant out of the State of Minnesota. This Court directed, and the People stipulated, that they would only be allowed to say that the Defendant was legally stopped and taken into custody on an unrelated offense.

During the trial testimony of Village of Monticello Police Officer Michael Napoli, Officer Napoli acknowledged that he was aware that the Defendant had an outstanding warrant for his arrest from the State of Minnesota and was going to necessitate a stop of the Defendant's vehicle for that reason when he witnessed the Defendant committing a traffic infraction. The Defendant stopped his vehicle a short distance away in front of 15 Fulton Street, a private residence in Monticello, New York and proceeded to walk towards that residence. The officer asked the Defendant to stop and return to his vehicle, with which the Defendant complied. The officer requested that the Defendant provide identification, which the Defendant stated was in the center console of his vehicle and gave the officer permission to retrieve same. The officer testified that he reached into the open driver's side door of the Defendant's vehicle to obtain the Defendant's identification, which was issued from the State of Minnesota, and he smelled the odor of marijuana in the vehicle and noticed that the passenger side window of the Defendant's vehicle was slightly down. The officer further testified that he did not see or remove any contraband from the Defendant's vehicle. The Defendant was then taken into custody on the Minnesota Warrant, and the Sullivan County Sheriff's Department secured the Defendant's vehicle and scene. The Defendant was not issued any traffic tickets by the Village of Monticello Police.

Sullivan County Sheriff's Deputy Anthony DiSantos testified that when he arrived on scene, he proceeded to secure the scene by scanning Fulton Street from one intersection to the other intersection. Deputy DiSantos stated that he had walked roughly one to two houses down from the Defendant's stopped vehicle— approximately one hundred feet— when he found a broken mason jar, mason jar lid, and loose marijuana next to the street and in a driveway. Deputy DiSantos also found a “blunt” wrapper a few feet away.

During the testimony of Deputy DiSantos, the Defendant's attorney requested a sidebar conference.² During this sidebar conference, the Defendant's attorney raised the issue— for the first time— that the testimony regarding the marijuana found on the street is prejudicial and violates the Defendant's rights under Molineux ³ , as there was no pre-trial hearing on this issue. The Defendant requested a mistrial or, in the alternative, that the jury receive a proper limiting instruction. Further, the People contend that the odor of marijuana in and of itself is not a crime and that the amount of marijuana found on the street was minimal and only rose to the level of a violation, which is the excuse for why the Defendant was not charged nor indicted with possession of the marijuana. As such, the People argue that this is not a Molineux issue. The People contend that this potential Molineux issue was not raised during pre-trial motions and hearings and that the People did not have the obligation to seek any pre-trial ruling on this issue. To that extent the Court agrees it is not Moleneux per se, but also raises the issue of Ventimiglia.

It is well settled law that evidence of an uncharged crime is not admissible at trial if its sole purpose is to show the defendant's propensity to commit the crime charged or as evidence of his bad character. People v. Allweiss, 48 NY2d 40 (Ct App 1979); People v. Till, 87 NY2d 835 (Ct App 1995); People v. Morris, 21 NY3d 588 (Ct App 2013). Such evidence may be admissible, however, to show intent, motive, a common scheme or plan, the identity of the perpetrator, and the absence of mistake or accident. Allweiss, supra, citing People v. Molineux, 168 NY 264 (Ct App 1901). This list is not exhaustive, and subsequent case law has added that evidence of uncharged crimes may also be allowed to show the “state of mind in relation to an avoidance of apprehension during immediate flight from a crime and is found to be needed ‘background material,’ ” Till, supra, quoting People v. Montanez, 41 NY2d 53 (Ct App 1976). See also, People v. Tosca, 98 NY2d 660 (Ct App 2002). This evidence has also been admissible to complete the narrative of the events “that were inextricably interwoven with the evidence of the charged crimes” in the indictment. People v. Royster, 107 AD3d 1298 (3d Dept 2013). See also, Morris, supra; Till, supra; People v. Gines, 36 NY2d 932 (Ct App 1975). Even if the evidence of uncharged crimes is relevant for an admissible purpose, it will only be admissible at trial if its probative value outweighs its undue prejudicial effect on the jury, a balancing test that is left to the discretion of the trial court. Morris, supra.

In the case at bar, this Court finds that the introduction of testimony regarding the Defendant's alleged possession of a minuscule amount of marijuana, with which the Defendant was not charged and the People contend was only of the level of a violation, was inextricably woven into the narrative of Officer Napoli and Deputy DiSantos. Officer Napoli testified that he smelled the odor of marijuana in the Defendant's vehicle upon reaching inside to obtain the Defendant's identification. Deputy DiSantos testified about his observations of loose marijuana and a blunt wrapper near broken mason jar glass while he was securing the scene. Such testimony was relevant in completing the narrative of both Officer Napoli's and Deputy DiSantos' actions and observations during the course of their investigation involving the Defendant, and in connecting the items of alleged evidence found in the street to the Defendant and his vehicle. In this regard, the probative value of allowing this testimony outweighs any potential undue influence to the Defendant.

In the interests of justice, and to further reiterate the intended purpose of this testimony, this Court provided several explicit limiting instructions to the jury, including the following instruction that was agreed upon between the People and the Defendant:

You have heard testimony in this case regarding the odor of marijuana and the presence of what police may have believed to be marijuana in the vicinity of the vehicle stop in this case. Such testimony was merely to explain the police observations at the scene and to explain other testimony that you may or may not give weight as to the possession of the weapon in this case. Even if you were to believe that this marijuana were in the possession of this defendant at some point, I charge you, as a matter of law, that such possession would not be criminal conduct and could not and cannot, in any way, be used or considered by you as evidence of any propensity of this defendant to commit any crime at all.

This Court further advised the jury that the testimony regarding the marijuana found has no bearing on the Defendant's credibility or likelihood of committing the crimes charged, and was not to be considered as proof of the weapons crime charged. This Court further advised the jury that the Defendant was not charged with the marijuana possession. In any event, the testimony regarding the marijuana was simply allowed so that “the jury [could] have a thorough appreciation of the interwoven events leading to the defendant's culminating criminal conduct and of the competing theories of what happened and why, the closely antecedent, uncharged [crime] in this case was relevant and material.” Till, supra.

Lastly, the People's failure to seek pre-trial review of the proffered evidence does not rise to the level warranting preclusion. The above issues may be considered in this case as inextricably woven into the depiction of the scene, were addressed outside of the presence of the jury, and this Court gave explicit limiting instructions to the jury regarding the testimony offered. Royster, supra.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's request for a mistrial is denied; and it is further

ORDERED, that Defendant's request for a limiting instruction to the jury is granted.

This constitutes the Decision and Order of this Court.

FOOTNOTES

1.   The arresting officer testified that he “smelled an order of marijuana in the car.”

2.   As the Defendant did not waive his right to be present at sidebar conferences, the Defendant himself was also present during this sidebar conference.

3.   Although this Court held extensive Sandoval/Ventimiglia/Molineux pre-trial hearings, the issue of marijuana and the “blunt” wrapper were not offered by the People as a bad act and were not charged in the indictment.

Frank J. LaBuda, J.