PEOPLE v. MOUNTZOUROS (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on counts one, two, four and five of the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, sexual abuse in the first degree (Penal Law § 130.65 [4]), arising from allegations that defendant sexually abused one of his youngest sons in 2012-2013. Viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Before trial, County Court granted the People's motion seeking to introduce testimony that defendant sexually abused his eldest son in the 1990s, on the ground that the earlier, uncharged conduct was admissible under the modus operandi exception to the Molineux rule (see People v. Molineux, 168 N.Y. 264, 61 N.E. 286 [1901]). We agree with defendant that this was error.

The “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” (People v. Cass, 18 N.Y.3d 553, 559, 942 N.Y.S.2d 416, 965 N.E.2d 918 [2012]). The commonly-recognized categories of non-propensity evidence are: “(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 [defendant]” (Molineux, 168 N.Y. at 293, 61 N.E. 286).

Modus operandi evidence is a means of establishing the defendant's identity as the perpetrator (see People v. Beam, 57 N.Y.2d 241, 250-251, 455 N.Y.S.2d 575, 441 N.E.2d 1093 [1982]). Here, even assuming, arguendo, that defendant's identity as the person who committed the crimes was not conclusively established (cf. People v. Agina, 18 N.Y.3d 600, 603-605, 942 N.Y.S.2d 411, 965 N.E.2d 913 [2012]), we conclude that the similarities between the uncharged acts and the charged crimes were not “sufficiently unique to make the evidence of the uncharged crimes probative of the fact that [defendant] committed the [crimes] charged” (Beam, 57 N.Y.2d at 251, 455 N.Y.S.2d 575, 441 N.E.2d 1093 [internal quotation marks omitted]; see People v. Condon, 26 N.Y.2d 139, 144, 309 N.Y.S.2d 152, 257 N.E.2d 615 [1970]; People v. Walker, 119 A.D.3d 1402, 1403, 989 N.Y.S.2d 756 [4th Dept. 2014]; cf. People v. Frederick, 152 A.D.3d 1242, 1242-1243, 59 N.Y.S.3d 640 [4th Dept. 2017]).

We further conclude that the error in admitting the evidence is not harmless. “Under the standard applicable to nonconstitutional errors, an error is harmless if the proof of defendant's guilt is overwhelming and there is no significant probability that the jury would have acquitted defendant had the error not occurred” (People v. Williams, 25 N.Y.3d 185, 194, 8 N.Y.S.3d 641, 31 N.E.3d 103 [2015]; see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975]). Here, it cannot be said that the proof of guilt, which turned primarily on an assessment of the credibility of testimony, was overwhelming (see People v. Holtslander, 189 A.D.3d 1701, 1704, 135 N.Y.S.3d 681 [3d Dept. 2020]; cf. People v. Casado, 99 A.D.3d 1208, 1211-1212, 951 N.Y.S.2d 797 [4th Dept. 2012], lv denied 20 N.Y.3d 985, 958 N.Y.S.2d 700, 982 N.E.2d 620 [2012]). We therefore reverse the judgment and grant a new trial on counts one, two, four and five of the indictment.

Defendant's remaining contentions are academic in light of our determination.