This involves a criminal case where the court excluded the evidence sought to be introduced in a prior, uncharged incident stating it was largely irrelevant from the alleged crime from which defendant is being indicted.
A New York Criminal Lawyer said on September 20, 1985, police officers chased herein defendants who are driving a livery or gypsy cab for suspecting to have stolen the vehicle. The officers then chased the defendants from the footbridge toward a ramp of the Henry Hudson Parkway. Reaching the bottom of the bridge, and proceeding along the exit ramp, defendant allegedly turned around and once again fired at the officers; neither officer was struck by a bullet. This time police officers returned fire, but did not strike his target. The absconders then proceeded north, away from the footbridge, and disappeared. After sometime, they were apprehended and charged with attempted murder and gun possession.
The prosecution’s star witness testified that on September 11, 1985 while driving his gypsy livery cab, defendants put a gun on the back of his head. He claimed that defendants stole his car and his money with a gun.
Defense counsel moved for a mistrial after the prosecutor’s summation, specifically including in his argument that the prosecutor had used the star witness’ incident to demonstrate that defendant had a propensity to use guns. The court denied the motion indicating that it would instruct the jury as to the appropriate use of the witness’ testimony, as it had done after the witness’ testimony.
Defendant was acquitted of all charges save two–criminal possession of a weapon in the second and third degrees. He thus stood convicted solely of gun possession.
The sole issue on the appeal is whether the evidence regarding the star witness’ incident should have been excluded.
The Court stated that criminal law requires conviction to be based upon evidence establishing beyond a reasonable doubt that the accused committed the specific crime or crimes for which he has been formally charged and tried, and not upon evidence showing that he has a propensity to commit the type of criminal conduct at issue. In the case at bar, defendant stood accused of crimes arising out of one incident, involving the alleged attempted murder of two police officers. However, the record makes clear that he was in fact tried for criminal acts which allegedly took place both on the date in question and nine days earlier, that being the alleged armed robbery of a gypsy cab. It is obvious to us that the evidence concerning the prior, uncharged incident was largely irrelevant other than for the purpose of showing that defendant was predisposed to commit armed violent felonies. Thus, this evidence should have been excluded.
The purported motive sought to be established in the case at bar was the motive to avoid apprehension for the witness’ incident, which occurred nine days before the alleged attempted murder of the officers. The testimony given, however which was subsequently referred to during the prosecutor’s summation, was of such a quantity and repetitive nature that it exceeded all permissible bounds. A New York Sex Crimes Lawyer said as the Court of Appeals has stated, “prejudice involves both the nature of the crime, for the more heinous the uncharged crime, the more likely that jurors will be swayed by it, and the difficulty faced by the defendant in seeking to rebut the inference which the uncharged[160 A.D.2d 94] crime evidence brings into play,” Applying this standard to the facts herein, we hold that the vast array of evidence, relating to a gun crime committed nine days earlier, in another county, as well as the repetitive nature of that evidence and the inappropriate use to which it was put during the prosecutor’s summation, could only have resulted in undue prejudice to the defendant with the result that his conviction was, in no small measure, based upon the Rosado incident.
The evidence of the Rosado incident should not have been admitted.
The Court observed that while the evidence adduced was legally sufficient to sustain a verdict finding defendant guilty of possession of a weapon, it was far from overwhelming. A Bronx Criminal Lawyer said there can be no argument that the extensive evidence of this uncharged armed violent felony was harmless, in view of the fact that the only crimes of which defendant was convicted were the gun possession charges.
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