PEOPLE v. RAMIREZ (2020)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry A. Schwartz, J.), rendered June 18, 2014, convicting him of gang assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

As we found on the appeal of the defendant's codefendant, a new trial is required here due to the prosecutor's improper comments during summation (see People v. Ramirez, 150 A.D.3d 898, 899, 54 N.Y.S.3d 93). While the defendant's claims of prosecutorial misconduct during summation are partially unpreserved for appellate review, as we did on the codefendant's appeal, we review the partially unpreserved claims in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]; People v. Ramirez, 150 A.D.3d at 899, 54 N.Y.S.3d 93).

“[O]n summation, a prosecutor may not ‘improperly encourage[ ] inferences of guilt based on facts not in evidence’ ” (People v. Gonsalves, 170 A.D.3d 886, 888, 94 N.Y.S.3d 626, quoting People v. Fisher, 18 N.Y.3d 964, 966, 944 N.Y.S.2d 453, 967 N.E.2d 676). As we determined in People v. Ramirez, 150 A.D.3d at 899–900, 54 N.Y.S.3d 93, the prosecutor here improperly suggested that the jury should disregard the grand jury testimony of one of the People's main witnesses, and invited the jury to speculate that a missing witness would have given supporting testimony if he had been called to testify. Contrary to the People's contention, the comments that were found prejudicial in the codefendant's case were equally prejudicial here, as the credibility of the People's witness was crucial to the case against this defendant, and the evidence against him was not overwhelming.

“The rule of Molineux is familiar: Evidence of uncharged crimes is inadmissible where its only purpose is to show bad character or propensity towards crime” (People v. Arafet, 13 N.Y.3d 460, 464–465, 892 N.Y.S.2d 812, 920 N.E.2d 919). However, “evidence of other crimes may be admitted to show motive, intent, the absence of mistake or accident, a common scheme or plan or the identity of the guilty party” (People v. Allweiss, 48 N.Y.2d 40, 47, 421 N.Y.S.2d 341, 396 N.E.2d 735; see People v. Morris, 21 N.Y.3d 588, 594, 976 N.Y.S.2d 682, 999 N.E.2d 160; People v. Molineux, 168 N.Y. 264, 61 N.E. 286). “In addition, evidence of uncharged crimes may be admitted as necessary background material when relevant to a contested issue in the case, or to complete the narrative of the events if such evidence is inextricably interwoven with the crime charged” (People v. Foster, 295 A.D.2d 110, 112, 743 N.Y.S.2d 429 [citations omitted]; see People v. Morris, 21 N.Y.3d at 594, 976 N.Y.S.2d 682, 999 N.E.2d 160; People v. Johnson, 137 A.D.3d 811, 812, 26 N.Y.S.3d 356). “Still, even if technically relevant for one of these or some other legitimate purpose, Molineux evidence will not be admitted if it ‘is actually of slight value when compared to the possible prejudice to the accused’ ” (People v. Arafet, 13 N.Y.3d at 465, 892 N.Y.S.2d 812, 920 N.E.2d 919, quoting People v. Allweiss, 48 N.Y.2d at 47, 421 N.Y.S.2d 341, 396 N.E.2d 735).

The fact that the defendant allegedly resisted arrest six months after the incident in question after violating an order of protection against him held by one of the complainants was not relevant in this matter. The defendant was not resisting arrest for the crimes charged at trial, and resisting arrest in this instance was too far removed from the underlying incident to be deemed admissible as evidence of consciousness of guilt (cf. People v. Harris, 304 A.D.2d 839, 839, 757 N.Y.S.2d 878, affd 23 N.Y.3d 89, 989 N.Y.S.2d 418, 12 N.E.3d 416). The probative value of the evidence that the defendant resisted arrest was far outweighed by the potential prejudice of creating an inference that the defendant may have violent tendencies, as indicated by him flailing and thrashing his arms against a police officer.

Accordingly, the judgment must be reversed, and a new trial ordered.

The defendant's remaining contentions are without merit.

SCHEINKMAN, P.J., DUFFY, BARROS and WOOTEN, JJ., concur.