People v. MT

DEBORAH KAPLAN, J. The defendant, M.T., stands charged with one count of endangering the welfare of a child in violation of Penal Law § 260.10 (1). The information alleges that on various dates between January and April 2000, at his residence in New York County, the defendant, a music teacher, placed his lips on the then 14-year-old complainant's lips and kissed her approximately three or four times during the course of her piano lessons. The information further alleges that during a four-month period commencing March 2001, the defendant sent five sexually suggestive electronic mail messages to the complainant: a message sent on May 18, 2001 states in substance, "Hi, sexy thing"; a message sent June 2, 2001 states in substance, "I'm dreaming of you ... from the pig (perv) in the picture"; a message Montanez, 41 NY2d 53 [1976]; People v Yapor, 308 AD2d 361 [1st Dept 2003].) Even when uncharged crimes evidence is admissible under one of these exceptions, it may not be received into evidence if its probative value is outweighed by the potential for prejudice. (See People v Cook, 93 NY2d 840 [1999]; People v Alvino, 71 NY2d 233 [1987]; People v Ventimiglia, supra .) In the instant case, the People seek to introduce the uncharged crimes evidence as relevant to intent, absence of mistake or accident, common scheme or plan and background information. The court will address the People's contentions ad seriatum.

The People first contend that the proffered evidence is admissible as evidence of the defendant's intent to commit the crime of endangering the welfare of a child. Penal Law § 260.10 (1) requires the People to prove that the defendant, M.T., "knowingly act[ed] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old." (Emphasis added.) "A person acts knowingly with respect to conduct or to a circumstance described by statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists." (Penal Law § 15.05 [2] [emphasis added].) Where the nature of the act alleged is equivocal and a particular intent cannot be inferred, extrinsic proof is admissible to negate the existence of an innocent state of mind. It is recognized that in such cases proof of intent may be "unobtainable except by evidence of successive repetitions of the act." ( People v Schwartzman, 24 NY2d 241, 248 [1969].) In those cases, evidence of other similar acts is permitted under the intent exception to the rule barring admission of uncharged crimes. However, equally well established is the principle that evidence of prior criminal acts to prove intent is unnecessary and inadmissible where intent may be easily inferred from the commission of the act itself. (See People v Vargas, 88 NY2d 856 [1996]; People v Alvino, supra ; People v Crandall, 67 NY2d 111 [1986]; People v Bagarozy, 132 AD2d 225 [1st Dept 1987].) As explained by the Court of Appeals in People v Alvino (supra at 242), "[s]imple proof showing that A. shot B. at one time and place throws no light upon the charge that A. poisoned C. at another time and place" since, "[i]n either of these cases guilty knowledge or intent is inferable from the nature and surroundings The cases relied upon by the People in support of their position are inapposite since, in those cases, the acts alleged in regard to the case being prosecuted were equivocal and open to innocent interpretation. Indeed, in People v Bagarozy (supra at 236), the First Department distinguished People v Young (99 AD2d 373 [4th Dept 1984]) as a case where "the intent of the actor is at issue because the nature of the contact is subject to varying interpretations." In Young (at 374), the defendant, father of the 10-year-old complainant, was observed "running his hands across his daughter's breasts and between her legs." The Court permitted the People to introduce evidence of the defendant's prior uncharged sexual contact with his daughter as proof of the element of intent, observing that "a certain amount of innocent touching occurs between a parent and child." Similarly, in People v Yagunoff (266 AD2d 723 [3d Dept 1999]), the Court permitted the People to introduce photographs found at the defendant's home which depicted the two complainants and various other children in provocative poses and varying stages of nudity. The acts alleged in the case before that Court consisted of the testimony of the two complainants that the defendant touched their "private part" and "bottom" while swimming. The Court reasoned that the photographs tended to prove that the defendant's intent in touching the complainants was sexual and not accidental. In the instant case, the defendant is not the complainant's parent, thus obviating the possibility of innocent touching. Furthermore, the physical conduct alleged was clearly not accidental, having occurred over a significant period of time and having been followed by a series of sexually suggestive e-mails.

The People contend that the uncharged crimes are admissible to negate any defense of accident or mistake. However, as conceded by the defendant, the nature and number of the acts alleged in this case would preclude any defense of accident or mistake. As stated previously, should a jury believe the complainant's testimony that the defendant repeatedly kissed her while holding her body, attempted to engage in more explicit conduct, requested a sexual relationship and sent the alleged electronic messages, then the defendant's intent will be clear.

"The prosecution may introduce evidence that the accused had formed a common scheme or plan to commit a series of one would not be probative of the other, and the potential for prejudice is manifest, the uncharged crimes evidence is not admissible under the "common scheme or plan" exception.

Uncharged crimes may be admitted into evidence, in the trial court's discretion, where they serve as explanatory background information or to complete a narrative. (See People v Montanez, supra; People v Yapor, supra ; People v Resek, 307 AD2d 804 [1st Dept 2003]; People v Monzon, 289 AD2d 595 [2d Dept 2001].) However, no legal authority supports the People's argument that the defendant's uncharged crimes are admissible as background material in this case. In People v Montanez (supra), the defendant was accused of shooting a friend following a lengthy discussion in the victim's home. The Court of Appeals ruled that it was permissible for the trial court to allow two witnesses to testify that they heard the defendant and the victim arguing about the sale of drugs, rather than give only generalized accounts of the argument without any particulars, since this testimony provided necessary background material. The defendant in People v Resek (supra ) was arrested when police stopped the car he was in and discovered a quantity of drugs. Although he was tried only on the drug possession charge, the Court permitted the People to introduce evidence of the defendant's arrest for possession of a stolen vehicle since the entire sequence of events would have been incomprehensible to the jury if they were not informed that the car had been reported stolen. Similarly, in People v Yapor (supra ), a homicide prosecution, the First Department found that the trial court appropriately exercised its discretion when it admitted into evidence testimony regarding the arrest of the defendant's wife. Since the defendant had surrendered to the police when he mistakenly believed she had been arrested for the instant crime, the Court concluded that such testimony provided "explanatory background information to complete the narrative" (at 362). The Court also permitted the introduction of prior threats made by the defendant to the deceased to explain the relationship between them. Research reveals no case where, in a prosecution for sexual offenses against one child, the People were permitted to introduce, as background material, evidence that the defendant committed similar and more serious sexual offenses against another child at an undisclosed time. Testimony of the prior uncharged crimes is simply unnecessary to explain or provide a background for the conduct charged in this case, and cannot be considered part of any narrative a jury would need to understand the facts relevant to this case. Unlike the cases relied upon by the People, preclusion of the uncharged crimes evidence here would not cause any confusion on the part of the jury. Rather, admitting the evidence would pose the real danger that the jury would mistakenly convict the defendant based on these prior acts or some propensity to commit such acts rather than on the evidence presented in this case. Since the proposed uncharged crimes evidence is not admissible under any of the exceptions advanced by the People, its admission would serve only to bolster the complainant's testimony. There is no recognized exception that permits admission of such testimony for that purpose. (See People v Vargas, supra ; People v Lewis, 69 NY2d 321 [1987]; People v Ventimiglia, supra ; People v Harris, 150 AD2d 723 [2d Dept 1989].)

For the reasons set forth above, the People's motion to introduce on their direct case evidence of prior uncharged crimes is denied in its entirety. [1] While it is inadmissible on the People's direct case, the defendant may open the door to the uncharged crimes evidence by raising credibility issues during cross-examination of the complainant (see People v Houston, 250 AD2d 535 [1st Dept 1998]; People v McIver, 245 AD2d 180 [1st Dept 1997]), by raising other matters that may be explained or refuted by that evidence (see People v Kanani, 272 AD2d 186 [1st Dept 2000]), or during his own case should he choose to testify or present evidence in his own behalf.