The Court of Appeals in its 2023-2024 term reversed the criminal convictions of two well-known defendants, Sebastian Telfair, the former New York City high school basketball star and retired National Basketball Association player and Harvey Weinstein, the famed Hollywood film producer. Telfair had been convicted of the crime of criminal possession of a weapon in the second degree (Penal Law Section 265.03[5]) and Weinstein was convicted of first-degree criminal act (Penal Law Section 130.50[1] [repealed effective Sept. 1, 2024 – L. 2023, c. 771, Section 1]) and third-degree rape. (Penal Law Section 130.35[1]). Both convictions were reversed by a divided (4-3) Court of Appeals on the ground the trial judge in both cases erred as a matter of law in admitting evidence of alleged prior bad acts committed by Telfair, evidence involving Telfair's possession of a weapon and his conviction for weapon possession, and by Weinstein, testimony of four women detailing sexual assaults Weinstein allegedly committed against them. Admission of this evidence, the majority held, constituted a violation of New York's venerable Molineux rule. (People v. Telfair, 41 NY3d 107 [2023]; People v. Weinstein, 2024 NY Slip Op. 02222 [April 25, 2024]).

This column will not address specifically the merits of the court's rulings in these cases, something that has already been done by this author and others. (See Hutter, "Court of Appeals Evidence Decisions: A Potpourri of Rules for Criminal and Civil Actions, Part 2," NYLJ, Aug. 14, 2024, p. 3, col. 3 [collecting articles]). Rather, in light of the generally recognized difficulty in determining Molineux admissibility and the spirited dissents in Telfair and Weinstein, this column will set forth a suggested specific approach to determine the admissibility of uncharged crimes or bad acts of a party in either a civil or criminal action. The general approach set forth in Telfair and Weinstein will provide the framework for this approach, but it will be refined with the addition of separate inquiries drawn from prior Court of Appeals' Molineux decisions and referenced by both the majority and dissenters in Telfair and Weinstein. The suggested approach, it must also be noted, is one advocated by an eminent evidence scholar, Professor Clifford S. Fisman, who served as an assistant district attorney for several years in the Office of the Manhattan District Attorney under Robert Morgenthau before he joined the academy, in his book "Relevance, Character, Habit and Impeachment," (2023) (Carolina Academic Press).