Molineux in the Interview Room: Prior-Act Admissions to Prove Intent Are Permissible, But Propensity-Laden Officer “Pattern” Statements Must Be Redacted

Introduction

People v. Siciliano, 2025 NY Slip Op 05721 (App Div 3d Dept Oct. 16, 2025), addresses a recurring and increasingly important trial-management problem in the era of recorded custodial interviews: when a defendant’s recorded statement includes both an admission to prior similar acts and an interrogator’s inflammatory characterization of those acts as a “pattern,” how should the trial court administer New York’s Molineux doctrine? The Third Department draws a careful line. It reaffirms that a defendant’s admission to prior similar conduct can be admissible to prove intent and to rebut accident or mistake, especially where the charged offense requires proof of sexual purpose. But it also holds that propensity-laden police commentary—here, an officer’s assertion that the conduct was a “pattern”—must be redacted where easily excisable, and that the failure to do so, compounded by the lack of timely limiting instructions and muddled curative steps, deprived the defendant of a fair trial.

The case arises from a 2022 incident at a campground where the defendant, Mark L. Siciliano, was accused of photographing a woman in a shower stall through a high-set window. He apologized and deleted the photograph when confronted. In a later recorded custodial interview, he claimed inadvertence (he said he had been trying to photograph a lightning storm), but he also acknowledged prior surreptitious photographing of his wife when prompted by a detective’s assertion that his wife had described prior incidents and that this was a “pattern.” A Warren County jury convicted Siciliano of three counts of unlawful surveillance in the second degree. On appeal, Siciliano challenged the trial court’s handling of prior-bad-act evidence embedded in the recorded interview under People v. Molineux.

Summary of the Opinion

The Third Department reverses and orders a new trial. It holds:

The defendant’s recorded admission that he had previously surreptitiously photographed his wife while she showered was admissible under multiple Molineux exceptions—principally to prove intent (sexual arousal/gratification) and to rebut accident/mistake—given that the charged unlawful surveillance counts required proof of sexual purpose and the act of taking a single, later-deleted photograph was otherwise equivocal.
However, the interrogating officer’s gratuitous characterization that the conduct was a “pattern,” and the defendant’s ambiguous “I understand that” response, should have been redacted. Admitting that propensity-laden segment was an abuse of discretion, especially because it was easily excisable and highly prejudicial.
The trial court’s failure to give contemporaneous limiting or cautionary Molineux instructions, its delayed and confusing curative response to the prosecutor’s summation reference to “pattern,” and its handling of the jury’s note during deliberations compounded the prejudice.
Given the non-overwhelming nature of the proof (competing narratives by the defendant and the victim’s boyfriend) and the centrality of the erroneously admitted material, the error was not harmless under People v. Crimmins. A new trial is required.

Analysis

Precedents Cited and Their Influence

People v. Molineux, 168 NY 264 (1901): Establishes the general rule barring evidence of uncharged crimes or prior bad acts to prove propensity, with exceptions for motive, intent, absence of mistake, common scheme or plan, identity, and inextricable background. Siciliano applies these exceptions to a modern recorded interview scenario.
People v. Alvino, 71 NY2d 233 (1987): Two key points. First, prior-act evidence may be admitted to prove intent where the act itself is equivocal. Second, it is admissible only if probative value outweighs prejudicial effect. Siciliano relies on Alvino to find the admission probative on intent and absence of mistake, while emphasizing the need to balance prejudice.
People v. Ventimiglia, 52 NY2d 350 (1981): Reinforces that courts must vet Molineux evidence pretrial to minimize prejudice. Siciliano critiques the trial court’s fragmented handling of the pretrial record, which led to confusion at trial.
People v. Telfair, 41 NY3d 107 (2023) and People v. Weinstein, 42 NY3d 439 (2024): Reaffirm the probative/prejudicial balancing and underscore the trial court’s discretion in that balancing, subject to appellate review.
People v. Hu Sin, ___ NY3d ___, 2025 NY Slip Op 03100 (2025): Clarifies a two-step review: de novo review of whether the evidence is relevant to a permissible, nonpropensity issue; if so, deferential review of the trial court’s balancing. Siciliano follows this framework—first finding nonpropensity relevance de novo, then identifying an abuse of discretion in the balancing and trial administration.
People v. Ely, 68 NY2d 520 (1986): The “completeness” principle—surrounding context may be necessary to understand a defendant’s admission. Siciliano recognizes completeness but draws a line against needlessly including an officer’s prejudicial “pattern” characterization where it can be cleanly excised.
Prior-act intent and mistake cases: People v. Restifo, 220 AD3d 1113 (3d Dept 2023); People v. MacLeod, 162 AD3d 1751 (4th Dept 2018); People v. Sorrell, 108 AD3d 787 (3d Dept 2013); People v. Goode, 176 AD3d 629 (1st Dept 2019); People v. Gonzalez, 62 AD3d 1263 (4th Dept 2009); People v. Brown, 57 AD3d 1461 (4th Dept 2008). These decisions endorse admitting similar prior acts to show intent or to rebut accident where the charged conduct is equivocal—the precise posture here.
Comparative cautions: People v. Leonard, 29 NY3d 1 (2017); People v. Reilly, 19 AD3d 736 (3d Dept 2005): Examples underscoring limits on propensity evidence; Siciliano cites them to show the court weighed the boundary lines.
Curative instructions and harmless error: People v. Calabria, 94 NY2d 519 (2000) (late curatives may be inadequate); People v. Greene, 306 AD2d 639 (3d Dept 2003) (role of limiting instructions); People v. Crimmins, 36 NY2d 230 (1975) (harmless error standard); People v. Hansel, 200 AD3d 1327 (3d Dept 2021) (non-overwhelming proof magnifies prejudice). Siciliano leverages these to explain why the late-stage curative attempts did not neutralize the prejudice.
Substantive offense: People v. Hatton, 26 NY3d 364 (2015) and Penal Law § 250.45: Establish the statutory focus on sexual purpose (arousal or gratification) for unlawful surveillance in the second degree; thereby elevating the relevance of prior acts to prove intent and absence of mistake.

Legal Reasoning

The court’s reasoning unfolds in two stages consistent with Hu Sin:

Nonpropensity relevance (de novo):
- Each charged count under Penal Law § 250.45 required proof that the defendant acted for sexual arousal or gratification. The court explicitly notes that “a criminal purpose cannot be readily inferred from the generally equivocal act of taking a photograph, later deleted.” That observation is pivotal: the act itself does not straightforwardly reveal sexual intent.
- Because Siciliano asserted accident (a lightning photograph gone awry) and the act was equivocal, his prior similar conduct—admitted in the interview as surreptitious shower photographs of his wife prompted by sexual interest—was directly probative of intent and of the absence of mistake. That places the admission squarely within established Molineux exceptions.
- The court also accepts that some of the questioning leading up to the admission is admissible for completeness (Ely) so the jury can understand and fairly evaluate the defendant’s responses.
Balancing prejudice against probative value (abuse-of-discretion review):
- Even where prior-act evidence is admissible in purpose, it must be excluded if unduly prejudicial relative to its probative value. Here, the interview contained a highly charged, nonessential element: the detective’s assertion that the incidents constituted a “pattern,” coupled with the suggestion of marital “blowouts.”
- Those labels are classic propensity cues. The court holds it was an abuse of discretion not to redact the “pattern” assertion and the defendant’s equivocal “I understand that” response before playing the recording. That redaction would have preserved the probative core (the defendant’s admission to prior similar acts) without importing the interrogator’s prejudicial commentary.
- Trial management compounding errors: no contemporaneous limiting instruction when the interview played; a belated, awkward curative step in summations that repeated the “pattern” phrase; and a narrow response to the jury’s note that both called further attention to the problem and left unclear what remained of the adoptive admission. The court acknowledges the defense did not request a limiting instruction but concludes that, taken together, these missteps created substantial unfairness.
- Harmless error: Because the case turned largely on credibility contests between the defendant and the boyfriend, the proof was “less than overwhelming.” The prejudice from the “pattern” material and the deficient curatives cannot be treated as harmless under Crimmins. Reversal is required.

Impact

Siciliano will influence New York trial practice in several concrete ways:

Redaction imperative for recorded interviews: When admitting a defendant’s recorded statement that includes prior bad acts, trial courts must excise police characterizations that cue propensity (e.g., “pattern,” “this is what you do,” “you always”). The defendant’s own admissions may be admissible; the interrogator’s labeling often is not.
Completeness is not a blank check: Ely permits context to make an admission intelligible, but Siciliano underscores that completeness does not require inclusion of gratuitous, highly prejudicial officer remarks if the defendant’s admission can be understood without them.
Limiting instructions matter: Although the defense did not request one here, Siciliano demonstrates how the absence of a timely and clear limiting instruction can magnify prejudice when Molineux evidence comes in—especially in recorded-interview formats where the jury repeatedly hears the prejudicial phrasing.
Ventimiglia/Molineux management: Trial courts should explicitly and consistently address each category of prior-bad-act proof. Admitting a recorded interview wholesale while excluding other, closely related Molineux evidence (e.g., prior photos or internet searches) risks confusing the jury and the parties and heightens the chance of reversible error.
Unlawful surveillance prosecutions: The opinion practically confirms that, where sexual purpose is an element and the act is equivocal, a defendant’s prior similar acts (especially admissions) will often be admissible to prove intent and to rebut accident. Prosecutors should, however, prepare careful redactions and tailored limiting instructions to avoid reversal.
Summation guardrails: Prosecutors should avoid invoking “pattern” or similar propensity language if such language entered the record only through an officer’s statement. Even if technically “in evidence,” repeating it risks reversible prejudice.
Appellate review clarified: Following Hu Sin and Weinstein, appellate courts will parse Molineux issues in two stages—de novo on nonpropensity relevance, then deferential balancing. Siciliano illustrates how the balancing can be abused by admitting an easily removable, highly prejudicial snippet.

Complex Concepts Simplified

Molineux evidence: New York’s rule generally prohibits prior bad acts to show a defendant’s criminal propensity. Exceptions allow such evidence to show motive, intent, absence of mistake, a common plan or scheme, identity, or to complete the narrative. Even then, the judge must find that its probative value outweighs the risk of unfair prejudice.
Probative value vs. unfair prejudice: Probative value asks, how much does this evidence help prove a legitimate, disputed point? Unfair prejudice asks, how much might this evidence cause the jury to decide based on emotion or character rather than facts? Judges must balance the two.
Adoptive admission: When a person hears an accusation and responds in a way that accepts or acknowledges it, their response can be treated as an admission. But the accusation itself (especially if phrased with loaded terms) may need redaction to avoid undue prejudice.
Completeness (Ely): Juries should hear enough of a conversation to fairly understand the defendant’s words. Completeness does not mean everything must be played; inflammatory parts that add little context can be excluded.
Limiting instruction: A judge’s directive telling jurors they may consider evidence only for a specific purpose (e.g., intent or absence of mistake) and not as proof that the defendant is a bad person who acts in conformity with prior behavior.
Harmless error (Crimmins): Even if a legal error occurred, a conviction stands if the appellate court is convinced the error did not affect the verdict. If the evidence of guilt is not overwhelming and the error is significant, reversal is required.
Unlawful surveillance in the second degree (Penal Law § 250.45): Among other elements, certain subdivisions require proof that the defendant acted for the purpose of sexual arousal or gratification. That intent element often makes prior similar acts relevant, but subject to strict Molineux safeguards.

Conclusion

People v. Siciliano provides a timely, practical refinement of New York’s Molineux doctrine in the context of recorded custodial interviews. The Third Department draws a principled distinction between admissible prior-act admissions (highly probative of intent and absence of mistake for unlawful surveillance) and inadmissible interrogator commentary that invites propensity reasoning. It also signals that trial courts must give serious attention to redaction and should employ clear, timely limiting instructions to cabin the jury’s use of such evidence. Because the State’s proof here was not overwhelming and the court’s missteps were cumulative and consequential, the conviction could not stand. Going forward, Siciliano will guide prosecutors, defense counsel, and trial judges in crafting redacted interview exhibits and in delivering robust limiting instructions that preserve the probative core without poisoning the well—sharpening the administration of Molineux in one of its most common modern settings.