PEOPLE v. BILLUPS

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Supreme Court, Appellate Division, Third Department, New York.

The PEOPLE of the State of New York, Respondent, v. James BILLUPS, Appellant.

Decided: November 29, 2007

Before:  CREW III, J.P., SPAIN, CARPINELLO, ROSE and LAHTINEN, JJ. Michael K. Barrett, Loudonville, for appellant. P. David Soares, District Attorney, Albany (Brett M. Knowles of counsel), for respondent.

Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered May 8, 2006, upon a verdict convicting defendant of the crimes of burglary in the second degree (six counts) and criminal possession of stolen property in the third degree.

Charged with committing a series of burglaries, defendant sought to preclude testimony at his jury trial that, during interrogation, he had stated that he had previously pleaded guilty to an earlier, unrelated charge of burglary.   Finding that the statement fell within the state of mind or intent exception to the rule in People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286 [1901], County Court allowed the testimony.   After the interrogating officer testified, County Court denied defendant's motion for a mistrial, but did give the jury cautionary instructions regarding its use of the testimony.   The jury ultimately convicted defendant of, among other things, six counts of burglary in the second degree.   Defendant appeals, and we reverse.

 The Molineux rule requires that evidence of a defendant's prior bad acts or crimes be excluded unless it is probative of a material issue other than criminal propensity and its probative value outweighs the risk of prejudice to the defendant (see People v. Resek, 3 N.Y.3d 385, 389-390, 787 N.Y.S.2d 683, 821 N.E.2d 108 [2004];  People v. Till, 87 N.Y.2d 835, 836, 637 N.Y.S.2d 681, 661 N.E.2d 153 [1995] ).   As is pertinent here, a defendant's state of mind and the element of intent are recognized exceptions to the Molineux rule (see e.g. People v. Sessoms, 200 A.D.2d 850, 851, 607 N.Y.S.2d 150 [1994], lv. denied 83 N.Y.2d 915, 614 N.Y.S.2d 397, 637 N.E.2d 288 [1994] ).   In making its ruling, however, County Court erroneously focused on defendant's state of mind during his interrogation rather than at the time he allegedly committed the crimes charged.   Intent was not truly at issue here because it could be readily inferred from the accomplice's testimony describing defendant's participation in the series of burglaries.   The issue of whether defendant had participated turned on whether the jury credited the accomplice's testimony.   Thus, the evidence of the prior conviction would only tend to establish defendant's propensity to commit burglary and not “to negate the existence of an innocent state of mind” (Matter of Brandon, 55 N.Y.2d 206, 211, 448 N.Y.S.2d 436, 433 N.E.2d 501 [1982];  see People v. Alvino, 71 N.Y.2d 233, 242-243, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ).   Had County Court correctly weighed these factors, the conclusion would have been that the potential prejudice of the evidence of the prior conviction far outweighed its probative value.  “Although County Court attempted to ameliorate the prejudice to defendant via limiting instructions to the jury, inasmuch as the prior bad act evidence here concerned crimes which were essentially identical to the charged offense[s], we cannot conclude that the error herein was harmless beyond a reasonable doubt” (People v. Wallace, 31 A.D.3d 1041, 1044, 818 N.Y.S.2d 684 [2006] [citations omitted];  see People v. Simmons, 29 A.D.3d 1219, 1221, 814 N.Y.S.2d 827 [2006];  People v. Reilly, 19 A.D.3d 736, 737-738, 796 N.Y.S.2d 726 [2005] ).

Given our determination, we need not consider defendant's remaining contentions.

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

ROSE, J.

CREW III, J.P., SPAIN, CARPINELLO and LAHTINEN, JJ., concur.

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