New York Criminal Defense Blawg

In a split decision authored by Judge Smith, a divided New York Court of Appeals decided a new case in the Molineux line on October 22, 2009.  This was People v. Nasin Arafet, N.Y.L.J., Friday, Oct. 23, 2009, p.45 (New York Court of Appeals 2009).  In Arafet, the defendant was charged with stealing the payload of a tractor-trailer rig, driving it out of state, emptying it, and then abandoning the trailer on the side of the road.  The evidence against Arafet was formidable.  Highway patrol and cellular telephone records put him in close proximity to where the theft and getaway occurred.  The government even had physical evidence of his involvement in the form of fingerprints they took from from a tollway ticket issued to a tractor-trailer that traveled the route of the stolen rig on the date and at the time of the occurrence.  To bolster its evidence, however, the government offered and the Supreme Court admitted four pieces of “Molineux” evidence that became the subject of Arafet’s appeal.  These were all “uncharged crimes” evidence and described in the opintion as follows:

• Evidence that the defendant placed a telephone call to the owner of a known Jersey City fencing operation, and that “cargo stolen from trailers had been received by [the fencing operation]” on two separate temporally proximate dates.
• Evidence that the defendant telephoned his accomplice in a prior tractor-trailer theft the day after the theft in question; and
• Evidence that the defendant had stolen a tractor-trailer three years before the incident in question in the present case.

Of these four pieces of evidence, the majority opinion quickly dismissed the first two by noting that the issue was “easy:” “This was not Molineux evidence at all.  The point of Molineux is to prevent a jury from convicting a defendant because of his criminal propensity.  Evidence of two criminal transactions in which defendant was not involved could show nothing about his propensity.”  Arafet, N.Y.L.J. Oct. 23, 2009 at 45.

As for the third piece of evidence, that concerning the telephone call to the former “partner-in-crime” the day after the theft, the court ruled that “‘a distinctive repetitive pattern’ of criminal conduct may be admitted under Molineux to show the defendant’s identity.  Repeated commission of similar crimes with the same accomplice is an example of such a pattern.”  Id. (quotation omitted and emphasis added).  Thus, the Court upheld the Supreme Court’s determination that the telephone call evidence as well as the evidence tending to show that the defendant and his earlier accomplice had committed a similar crime together in the past was admissible under the Molineux rule.

The Court did rule, however, that the fourth piece of evidence, that relating to the defendant’s alleged prior theft of a tractor-trailer should not have been admitted in the trial court.  The government had argued in the Court of Appeals that the evidence should have been admitted under Molineux because it was a “specialized crime” probably on account of the fact that a tractor-trailer theft such as the one at issue required a certain level of technical knowledge and expertise to commit.  The Court of Appeals rejected this argument, seeing “no justification . . . for creating a ‘specialized crime’ exception to Molineux.  No doubt this crime is beyond the skills of the average citizen  .  .  .  .  But the crime could probably have been committed by any experienced tractor-trailer driver, and we cannot believe there was no less prejudicial way to prove that defendant had experience in that line of work.”  Id.

Despite its ruling that the trial judge erred in admitting the evidence on the recent conviction, the Court determined that the err was harmless, and thus upheld the conviction.  It applied the well-known standard articulated in the 1970s in People v. Crimmins, 36 N.Y.2d 230 (1975): “An error of law may be found harmless where ‘the proof of the defendant’s guilt, without reference to the error, is ‘overwhelming’ and where there is no ‘significant probability . . . that the jury would have acquitted the defendant had it not been for the error.’”  Crimmins, 36 N.Y. at 241-242.  The Court found that the evidence in the case, albeit purely circumstantial, was “overwhelming,” mostly on account of what they deemed to be the “key piece of evidence” in the case, the “defendant’s fingerprint on the toll ticket.”  Judges Graffeo, Read, and Pigott concurred in the Judge Smith’s opinion.

Judge Ciparick, joined by Judges Lippman and Jones, wrote a vehement dissent on the harmless error grounds.  Judge Ciparick pointed out that the prosecution’s case was largely centered on collateral evidence of events that had no direct relation to the matter at hand: “It is remarkable that one-fifth of this trial record–spanning several hundred pages of trial testimony from numerous state and federal law enforcement officers and dozens of exhibits–is consumed by collateral matters  .  .  .  .  Much of the prosecutions’s summation was centered on these matters.”  Arafet, supra (Ciparick, J. dissenting).

Judge Ciparick agreed with the majority that the evidence of defendant’s more recent theft of a tractor-trailer under similar circumstances should not have been admitted under Molineux: “Defendant’s prior conviction for a cargo theft was not so peculiar that it involved a signature offense.”  Id. Judge Ciparick, however, differed with the majority when it came to its approval of the admission of the evidence relating to the defendant’s telephone call to his accomplice in a prior tractor-trailer theft.  Judge Ciparick noted that “[t]o establish the identity exception, Molineux demands that there be evidence of a distinctive crime forming a uniqueness that necessarily identifies the defendant as its culprit, as would a signature  .  .  .   [a]s Molineux long ago stated, ‘the naked similarity of . . . crimes proves nothing.”  Id. The dissent reasoned that the evidence of the “uncharged cargo theft” the defendant was alleged to have committed with the accomplice “display[ed] neither any sort of distinctive manner that conclusively identified defendant in the allegations in this case, nor a pattern of criminal behavior.  Rather, this evidence establishes nothing more than telling the jury of defendant’s propensity to commit this type of offense based upon his alleged earlier engagement in a similar type of crime along wiht a person he may have telephoned at the time of this crime.”  Id. Thus, weighing the potential prejudice against the probative value of the evidence, Judge Ciparick concluded that the evidence of the telephone call and the earlier uncharged crime should not have been admitted, and that the introduction of this evidence offered the jury to use it as pure propensity evidence.

Judge Ciparick also disagreed with the majority’s ruling on the question of the admission of the evidence that the defendant placed a telephone call to the owner of a known Jersey City fencing operation, and that “cargo stolen from trailers had been received by [the fencing operation]” on two separate temporally proximate dates, primarily on the ground that the prejudicial effect clearly outweighed it’s probative value.  Although noting that the question of the admissibility of this evidence was not “strictly subject to Molineux, the court must be mindful of similar dangers . . . and the danger of the defendant’s propensity to commit the charged crime and his guilt thereof merely by association with individuals with criminal pasts.”  Id.

The dissent also sharply disagreed with the majority’s findings on harmless error by reviewing and questioning the non-Molineux evidence, piece by piece.  On the other hand, Judge Ciparick found that the evidence that should not have been admitted carried a strong prejudicial effect, such that it “served to deprive the defendant of a fair trial.”  Id.

All told, this decision can be read as having precedential value for both prosecutors and defense attorneys going forward.  On the one hand, the evidence of third-party criminality may be useful to prosecutors in proving cases involving complex schemes or well-laid plans to commit a crime.  On the other hand, the language of both the majority and dissenting opinions reinforced the notion that when it comes to the identity exception, the evidence of prior bad acts or convictions must be extremely similar, such that the conduct in question in both matters were a part of a pattern forming a signature crime.  The challenge for defense attorneys, however, will be to make the proper motions and arguments before the trial judge to ensure that the jury does not get to consider this type of evidence before it becomes too late.  This is especially so in light of the fact that the harmless error aspect of the decision suggests a somewhat low standard for what an appellate court may deem “overwhelming evidence.”

Most criminal attorneys are familiar with the central holding in the case of People v. Molineux, 168 NY 264 (1901). The New York Court of Appeals recently summed it up nicely in the recent case of People v. Dorm, “[e]vidence of a defendant’s prior bad acts may be admissible when it is relevant to a material issue in the case other than defendant’s criminal propensity, the People may use such evidence to prove motive, intent, lack of mistake or accident, identity, common scheme or plan. However, this list is “merely illustrative and not exhaustive.” Where there is a proper non-propensity purpose, the decision whether to admit evidence of defendant’s prior bad acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice.” 12 N.Y.3d 16, 19 (2009).

So-called “Molineux” evidence, even if admitted with a proper limiting instruction from a judge, is some of the most dangerous and damaging evidence that can possibly be used against a defendant in a criminal case because, regardless of its purpose, it educates the jury on the defendant’s past of criminal or “bad” acts. Some jurors will inevitably struggle with the impossible psychological hurdle of distinguishing between the acts or omissions at issue in the present matter and those he or she has committed in connection with the Molineux evidence, as the law requires. Simply put, Molineux evidence has the potential to cause a juror to develop a “once-a-criminal, always-a-criminal” attitude toward a defendant.

The finer points of law set forth in Molineux and its progeny are not the subject of this post. Despite its 100+ year resonance, very few practicing criminal attorneys are actually familiar with the facts of the Molineux murder case itself. These read like a suspense novel set in the turn of the century New York City, and contain elements of jealousy, revenge, fate, and murder. The Court of Appeals itself dubbed the case a “grewsome tragedy.” Molineux, 168 N.Y. at 277.

It all started with a dispute between two gentlemen members of the Knickerbocker Athletic Club, Harry S. Cornish, the club’s athletic director, and the defendant, prominent club member Roland B. Molineux. Molineux, 168 N.Y. at 277. Molineux and Cornish quarreled over such things as the proper running of club dinners and “an amateur circus which was given under the auspices of the club.” The argument became vicious and Molineux resigned from the club after unsuccessfully trying to have Cornish discharged. After leaving Knickerbocker Athletic Club, Molineux became associated with the New York Athletic Club. Evidence was admitted at his trial that he complained of Cornish to a member of the New York club, and “referred to Cornish as a low, vile, bad man . . . .” Id. at 279.

Here is one of the opening lines of the factual description in the opinion: “On the morning of December 24, 1898, Cornish received through the mail a package in which was found a pale blue box containing a silver bottle holder and a blue bottle bearing a ‘bromo seltzer’ label and filled with a powder purporting to be ‘bromo seltzer.’” Molineux, 168 N.Y. at 273. Cornish thought the mailing nothing more than a Christmas gift, placed the bottle in his desk and four days later, he took it home. Id. at 273-274. The next day, December 28, 1898, Mrs. Kathleen J. Adams, of whose “household” Cornish was a member, became stricken with a headache. Cornish decided to administer the “bromo seltzer” to her as a remedy. Id. at 274. Shortly after reporting that the mixture had a “peculiar taste,” Mrs. Adams collapsed and later died. Id. An autopsy revealed that she had been poisoned to death with the use of mercury.

Here is a listing of the circumstantial evidence the People used against Molineux to prove his guilt of the murder of Adams:

• Testimony concerning the argument between the two men while both were members of the Knickerbocker club tending to establish Molineux’s motive for the killing of Cornish, Id. at 277-279;
• Testimony and evidence that Molineux worked at a dye company with a good “chemical library,” and which was physically located very near to the store where the silver bottle containing the poison was purchased, Id. at 277-279;
• Testimony that Molineux had a working knowledge of chemistry, Id. at 277;
• “The box which contained the bottle and bottle holder was a ‘Tiffany’ box, and the envelope was such as are used at Tiffany’s to inclose cards which are sent with gifts. The defendant had an account at Tiffany’s, and made a purchase there in December, 1898.” Id. at 279.
• Molineux’s handwriting matched the handwriting on the card which accompanied the poison delivered to Cornish. Id. at 288-291.

Whether this would have been enough circumstantial evidence to convict Molineux of the Adams murder we shall never know because, as noted in the opinion, “as a part of the theory or theories upon which the prosecution sought to connect the defendant with the killing of Mrs. Adams, evidence was offered and received to show that the defendant was responsible for the previous killing of one Henry C. Barnet, who came to his death at the Knickerbocker Athletic Club house on the 10th day of November, 1898.” According to the evidence presented at trial, Molineux skillfully poisoned Barnet, another member of the Knickerbocker club (and a close personal friend), to death after he suspected Barnet of competing for the attention of one Ms. Cheeseborough, upon whom Molineux had pre-existing designs. Molineux had introduced Cheeseborough to Barnet at the Metropolitan Opera. This was the Molineux evidence in Molineux, and “was received upon the trial tending to connect the defendant with the felonious killing of Barnet, for the purpose of proving his guilt of the crime of poisoning Mrs. Adams, which was the offense charged in the indictment.” Id. at 293.

The facts of Molineux, while certainly not as intriguing as the ensuing legal precedent, make for an interesting read, and may be considered noteworthy to lawyers who deal with the precedent on a routine basis.