The People, etc., respondent, v. Anthony Mendez, appellant. (2010)

Argued-October 2, 2009

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Knopf, J.), rendered May 11, 2007, convicting him of criminal contempt in the first degree (two counts), criminal contempt in the second degree (three counts), and aggravated harassment in the second degree (six counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial.

Evidence of uncharged crimes may properly be admitted “as relevant background material to enable the jury to understand the defendant's relationship with the complainant and explain the issuance of an order of protection, and as evidence of the defendant's motive and intent in the commission of the charged crimes” (People v. Laverpool, 52 AD3d 622, 622-623;  see People v. Molineux, 168 N.Y. 264, 297-305;  People v. Timmons, 54 AD3d 883, 885;  People v. Farmer, 54 AD3d 871, 872;  People v. Howe, 292 A.D.2d 542, 542).

Here, the evidence adduced at trial fit into these recognized exceptions to the Molineux rule (see People v. Molineux, 168 N.Y. 264;  People v. Sayers, 64 AD3d 728).  “In such cases, the court may admit the evidence in its discretion if its probative value outweighs the potential for prejudice, provided that the court gives a proper limiting instruction to the jury” (People v. Wright, 288 A.D.2d 409, 410;  see People v. Satiro, 72 N.Y.2d 821, 822;  People v. Phipps, 50 AD3d 929, 930;  cf.  People v. Wilkinson, AD3d, 2010 N.Y. Slip Op 00550 [2d Dept 2010] ).

However, the Supreme Court erred in failing to give proper limiting instructions (see People v. Sayers, 64 AD3d 728;  cf.  People v. Ross, 43 AD3d 1434, 1435;  People v. Brown, 249 A.D.2d 556, 557).   Moreover, it cannot be said that there was no significant probability that the erroneous instructions contributed to the defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 241-242).   Accordingly, a new trial is required.

RIVERA, J.P., ENG, CHAMBERS and HALL, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court