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.”