The opinion of the court was delivered by: Ciparick, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
This appeal raises several questions for our review. The principal question we are called upon to determine is whether courtroom seating arrangements wherein court officers stationed themselves directly behind defendant during the course of his trial deprived him of his constitutional right to communicate confidentially with his attorney and prejudicially conveyed to the jury that he was dangerous. We conclude that the positioning of the court officers in this case did not infringe upon defendant's constitutional right to counsel or deprive him of a fair trial.
The other significant question we are asked to consider is whether Supreme Court abused its discretion when it permitted the People under Molineux to introduce certain evidence of defendant's uncharged crimes and whether the People's evidence elicited at trial exceeded the scope of such ruling. We conclude that Supreme Court's decision to admit this evidence was appropriate.
A Bronx County grand jury charged defendant with three counts of murder in the first degree (Penal Law § 125.27  [a] [viii]) and three counts of murder in the second degree (Penal Law § 125.25 ). The indictment alleged that on March 15, 2003, defendant killed Eunice Younger and her two adult children, Ricky Younger and Gloria Watson (the Youngers), by shooting them in the head inside their apartment. Prior to trial, defendant moved to suppress, as relevant here, his identification in a lineup by two eyewitnesses. Defendant contended that counsel represented him on a related matter and that, therefore, law enforcement violated his right to counsel when they conducted a lineup without notifying his attorney. Supreme Court denied the motion, reasoning that "[a] defendant who is not represented on a case for which he is in custody, but who is represented by an attorney on an unrelated case, has no right to the presence of that attorney at a lineup relating to the case in which he is not represented."
Also before trial, the People moved for the admission of certain uncharged crimes and prior bad acts allegedly committed by defendant, maintaining that the proffered testimony was relevant on the issues of "identity of the perpetrator, intent, motive and background." According to the People, their theory of the case was "that these homicides were the culmination of approximately a year-long series of incidents between defendant" and the Youngers, defendant's upstairs neighbors. In support of this theory, the People sought permission to elicit testimony from Cortina Watson, decedent Gloria Watson's daughter, and Marvin Ford, Gloria's boyfriend. The gravamen of the proposed testimony would be that defendant assaulted and threatened them and the Youngers on several occasions in the year prior to the shootings.
Following an initial hearing, written submissions by the parties and a subsequent reargument motion on the matter, Supreme Court limited Cortina Watson's testimony at trial as follows: on the evening of April 13, 2002, 11 months before the shootings, she was inside the Youngers' apartment with Ricky. At some time during Cortina's visit, defendant began kicking the door to the family apartment. Cortina answered the door at which time defendant, who was in an agitated state, told her that he was "sick and tired of you people using all the hot water." Cortina responded by informing defendant that no one in the apartment was utilizing the hot water. Defendant, in turn, threatened to kill her and Ricky. Fearing for their safety, they filed a complaint with the police and received a temporary order of protection forbidding defendant from having any contact with them.*fn1
Supreme Court also allowed Marvin Ford to testify, limiting his testimony to the following: on January 18, 2003, less than two months before the shooting, Ford was inside the Youngers' apartment with Ricky. During Ford's visit, defendant came to the door and a verbal altercation between Ricky and defendant ensued. Ford overheard defendant threaten to kill Ricky and observed defendant display a knife. After defendant left the premises, Ford saw him from the apartment window. Defendant, again displaying what appeared to be a handgun, shouted to Ford that "I've got something for you." Based on this incident, the police arrested defendant and charged him with criminal contempt and a second order of protection was issued, barring defendant from having any contact with either Ford or Ricky.*fn2
Toward the beginning of jury selection, defense counsel objected to the physical proximity of court officers who sat "directly behind defendant." She complained that their positioning prevented her from freely communicating with her client and signaled to the prospective jurors that defendant had "to be guarded so closely." As such, counsel requested that the officers "sit at the rail where their seats are normally positioned." Supreme Court disagreed with defense counsel's perception, but informed her that it would ask the officers "to sit back a little further."
Later that day, defense counsel renewed her objection to the positioning of court officers behind defendant. She argued that, because the court officers have their feet on defendant's chair, "it is impossible to have a confidential communication with [him]." Supreme Court placed on the record that defendant had been charged with a disciplinary infraction while incarcerated at Rikers Island for allegedly assaulting a corrections officer and that this incident was the basis for the heightened security measures -- i.e., the placement of the court officers' toes against the bottom of defendant's chair. Supreme Court also indicated that there were prior incidents before a different judge where defendant acted aggressively in the courtroom. With respect to defense counsel's remarks concerning defendant's constitutional right to confidential communication with his attorney, Supreme Court noted that the court officers were only sitting approximately two or three inches closer to defendant from their normal position at the rail. The court further stated to counsel:
"[T]he notion that there is greater confidentiality in the communications between you when the officers are two inches further away I think is farfetched. You have as much confidentiality as you would have if they were back at the railing . . . so I don't see a difference there."
In any event, Supreme Court offered to arrange opportunities for defendant and counsel to speak in a more private setting. Defense counsel also reiterated her view that the physical proximity of the court officers "has prejudiced the defendant terribly in the eyes of this jury because it telegraphs to them very directly this is a very dangerous man." Supreme Court rejected this argument, countering that it was "satisfied" that defendant was not prejudiced in the eyes of the jury.
After jury selection, the People presented comprehensive, albeit circumstantial, evidence linking defendant to the shootings. The jury, for example, heard testimony from Monica Killebrew who lived in an apartment opposite the Youngers. On the date of the shootings, at around 4:00 P.M., Killebrew was home when she heard loud banging noises coming from outside her apartment. As she approached her front door, Killebrew testified that the noises she heard sounded like "a fight," "like people . . . getting thrown up against the wall." A short time thereafter, Killebrew heard defendant, whose voice she was positive that she recognized, say, "I am tired of you people bothering me." Immediately thereafter, Killebrew heard a "popping sound" that sounded like a gunshot. Moments later, she heard three more shots. At this point, Killebrew was standing by her apartment window in hysterics, speaking to a woman on the street, when she saw defendant walking out of the building. Killebrew testified that after defendant left, the apartment building was completely still inside and that nobody else entered or exited the building. Killebrew identified defendant in a lineup the following day and in court during the trial.
In addition to Killebrew, two other witnesses who were located at a business adjacent to the apartment building at the time of the shooting testified. They both corroborated Killebrew's testimony about the timing of the gunshots and identified defendant as the individual who exited the apartment building after the shots were heard. They also confirmed that ...