People v. Banks

 This matter comes before the Court by way of Defendant’s Omnibus Motion request for a hearing pursuant to People v. Ventimiglia, 52 NY2d 350 (Ct App 1981). The Court granted the request for same and held a combined Ventimiglia/ Sandoval/ Molineux hearing on June 25, 2018.The Defendant, along with his Co-Defendant Davante Robinson,¹ were charged with one (1) count of Criminal Sale of a Controlled Substance in the Third Degree pursuant to PL §220.39(1), a Class B felony; one (1) count of Criminal Possession of a Controlled Substance in the Third Degree pursuant to PL §220.16(1), a Class B felony; one (1) count of Criminal Possession of a Controlled Substance in the Fourth Degree pursuant to PL §220.09(1), a Class C felony; and one (1) count of Conspiracy in the Fourth Degree pursuant to PL §105.10(1), a Class E felony.The indictment was a result of the New York State Police Community Narcotics Enforcement Team (“CNET”) engaged in a months-long investigation, in Sullivan County, into a narcotics trafficking ring known as “Operation Jersey Boyz.” The investigation targeted a group of individuals from New Jersey who moved to Sullivan County, New York, for the purpose of distributing heroin. These individuals splintered into separate heroin trafficking operations that sold heroin throughout Sullivan County.The Defendant and his Co-Defendant, Davante Robinson aka “Benji,” are charged with obtaining large quantities of heroin in Essex County, New Jersey and transporting the narcotics to Sullivan County. Once in Sullivan County, the Defendant and his Co-Defendant supplied the heroin to the other members of the narcotics trafficking ring for distribution. These members were Ronald Smith aka “Tubbs,” Shyquan Tait aka “Quanny,” Shaheed White, and Kevin Yuille.² Smith, the alleged ringleader/ “kingpin” of the narcotics trafficking ring, was convicted after trial on all counts against him. Tait had entered into a Cooperation Agreement to testify against Smith in exchange for a favorable plea bargain. White and Yuille also entered into plea bargains and were convicted of sales of heroin.The People made application to introduce a “bad act” of the Defendant to impeach the credibility of the Defendant and/or as evidence-in-chief of Defendant’s complicity in narcotics trafficking. The joint Ventimiglia/ Sandoval/ Molineux hearing record, in the case at bar, established that the Defendant took part in an assault incident against Derrick Young, a person known to Smith and Tait. The facts involving the assault incident, including torture and water-boarding of Young, were established by the sworn testimony of Young and Tait at the trial of Smith. While living in an apartment located at 349 Cold Spring Road in Monticello, Tait was physically robbed of two (2) television sets by two (2) individuals with baseball bats. Tait testified that his sister had set up the robbery and that Young was one of the robbers. Tait further testified that he was going to “take care of it” himself rather than go to the police. Tait’s plan lured Young to his apartment, where Tait instructed his friends “Skooly,” “Fat Boy,” (LNU)³ and the Defendant herein to take Young upstairs.Once upstairs, Tait instructed these individuals to have Young take off his clothes leaving only his underwear on. Tait also instructed these individuals and the Defendant herein to boil water on the kitchen stove. The individuals urinated in the boiling water. Young was tied down by rope, hit in the knees with baseball bats, gagged with dirty socks, water-boarded, and had the boiling water (mixed with urine) poured on his bare and bruised legs at least four (4) or five (5) times. Additionally, Young was allegedly given heroin while being tortured.⁴ Young testified that the skin was peeling off of his legs because of the scolding water. Young was subjected to this torture for approximately five (5) hours. Tait also testified that he needed to “make an example” of Young. Young did not complain to the police nor were charges brought against this Defendant or anyone else as a result of this assault incident.Molineux Analysis:Under People v. Molineux, 168 NY 264 (Ct App 1901), the People may introduce in their case-in-chief evidence of a defendant’s prior uncharged crimes or bad acts under certain circumstances. See also, People v. Ward, 141 AD3d 853 (3d Dept 2016). These circumstances include to show motive, intent, absence of mistake, common plan or scheme, and identity, or where these acts are “inextricably interwoven” with the charged crimes, where they provide necessary background information, or where they complete a witness’ narrative. Id. See also, People v. Morris, 21 NY3d 588 (Ct App 2013); People v. Rivera, 124 AD3d 1070 (3d Dept 2015); People v. Williams, 28 AD3d 1005 (3d Dept 2006). In People v. Kalina, 149 AD3d 1264 (Ct App 2017), this Court’s Molineux ruling permitted the people to offer evidence that sexual conduct between the victim and defendant had first occurred in 2002 in New Jersey. The Court of Appeals, in affirming the Appellate Division, Third Department, found that under the particular facts of that case, the uncharged crimes did not fall within one of the recognized Molineux exceptions and should not have been permitted, but that such error was harmless.In the case at bar, it is clear that the alleged incident does not fall under any of the recognized Molineux exceptions. The assault incident is not “inexplicably interwoven” with the charged crimes, nor is the evidence of same needed to show motive, intent, identity, or a common scheme or plan. The alleged victim is not a necessary witness to prove the People’s case or to provide background information regarding the narcotics and conspiracy charges at bar, and such testimony would only be provided in order to attack the Defendant’s character. Further, the prejudice against the Defendant would be too great if any questioning of the Defendant regarding the assault incident was allowed during the People’s case-in-chief.Sandoval/Ventimiglia Analysis:It is well established law that evidence of prior bad acts or uncharged crimes, is inadmissible to simply show a propensity to commit a crime or to vilify the defendant’s character. See, People v. Fiore, 34 NY2d 81 (Ct App 1974); People v. Brooks, 155 AD3d 1429 (3d Dept 2017). Even where there is a relevant Molineux exception, the trial court must further determine whether the probative value of allowing such evidence outweighs its prejudicial effect. People v. Brown, 114 AD3d 1017 (3d Dept 2014). “Where there is a proper nonpropensity 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.” People v. Dorm, 12 NY3d 16 (Ct App 2009). As eloquently stated in People v. Resek, 3 NY3d 108 (Ct App 2004), “there is a danger that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value.”The use of this incident during cross-examination simply to impeach the Defendant’s credibility, should he choose to testify, would have a substantial chilling effect on the Defendant’s right to testify on his own behalf. The Defendant would have little to no choice but to assert his Fifth Amendment privilege to protect himself against self-incrimination at the risk of being charged with the assault.The evidentiary or probative value of the assault incident has little to no value in proving the drug crimes charged in the indictment, but may have significant value in impeaching the Defendant’s credibility.However, while this Court finds that the acts allegedly committed by the Defendant herein are horrific, and are relevant and material to the Defendant’s credibility, their probative value to the Defendant’s credibility wanes in the light of vilifying the Defendant and showing the Defendant’s despicable character as well as his willingness to place his own criminal interests over those of society. See People v. Duffy, 36 NY2d 258, 326 N.E.2d 804 (Ct App 1975). The prejudice that the Defendant would face should evidence or testimony of this assault incident be admissible, even for the limited purpose of credibility, would be immensely prejudicial, and that prejudice outweighs its probative value. See People v. Sandoval, 34 NY2d 371, 314 N.E.2d 413 (Ct App1974). The People are therefore prohibited from introducing this uncharged assault incident upon cross-examining the Defendant.It is important to note, however, that this ruling does not preclude the People from inquiry into and from eliciting the facts of this uncharged incident during cross-examination should the Defendant, in testifying on his own behalf, make assertions that “open the door” and render those prior bad acts relevant and responsive to the Defendant’s credibility, veracity, or honesty. People v. Rojas, 97 NY2d 32 (Ct App 2001); People v. Fardan, 82 NY2d 638 (Ct App 1993). In People v. Blakeney, 88 NY2d 1011 (Ct App 1996), the Court of Appeals held that Defendant’s claim that he had never seen or known his co-defendant before his arrest for selling crack cocaine with her opened the door to evidence tending to disprove his account and rendered prosecution’s questions regarding defendant’s subsequent arrest for nearly identical crime with the same co-defendant relevant for contradiction and response to existence of their relationship at time of initial arrest and not simply evidence used to impeach the defendant’s general credibility. As such, when the defendant or a defense’s witness testifies to facts that are in conflict with the precluded evidence, the defense “opens the door” on that issue in question and the defendant or witness is then properly subjected to impeachment by the prosecution’s use of evidence that has otherwise been precluded. People v. Brown, 252 AD2d 598 (3d Dept 1998); Jackson v. Lee, 2010 WL 4628013 (SDNY 2010).Based upon the foregoing, it is herebyORDERED, that Defendant’s request pursuant to People v. Ventimiglia is granted to the extent outlined herein.This constitutes the Decision and Order of this Court.Dated: July 12, 2018Monticello, New York