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The People &C v. Mickey Cass

February 16, 2012


The opinion of the court was delivered by: Jones, J.

This opinion is uncorrected and subject to revision before publication in the New York Reports.

The primary issue we address is whether the trial court properly admitted evidence of defendant's uncharged murder to rebut defendant's extreme emotional disturbance defense concerning the murder for which he was on trial. Although we have considered the use of Molineux evidence (People v Molineux,168 NY2d 264 [1901]) to rebut a defense predicated on a defendant's impaired state of mind in other contexts (see e.g., People v Santarelli, 49 NY2d 241 [1980] [legal insanity defense]), this appeal presents the first opportunity for the Court to address the use of Molineux evidence in the context of an extreme emotional disturbance defense.

In affirming the order of the Appellate Division, we hold that the evidence was properly admitted. Additionally, we reject defendant's claim that he was denied effective assistance of trial counsel. Further, defendant's claim, raised in his pro se supplemental brief, that he did not authorize defense counsel to raise the extreme emotional disturbance defense involves matters which are dehors the record, and is therefore not reviewable by this Court.


On September 25, 2003, defendant strangled his then roommate, Victor Dombrova, during an argument in Dombrova's Brooklyn apartment in which Dombrova expressed that he wanted defendant to vacate the premises. After defendant killed Dombrova, he fled the crime scene. The police investigating the crime discovered defendant's identity from a resume left at the apartment, and witnesses to the argument verified defendant's identity. The police further discovered that defendant was wanted for questioning in Buffalo concerning a similar homicide. In the course of their investigation, the police located defendant's former girlfriend who told them that defendant fled to Florida. They then placed a trap and trace/pin register on her phone, and, about a week after the homicide, defendant called the former girlfriend, was traced to Florida and arrested in that jurisdiction.

In a post-arrest statement, defendant told the police that, as a child, he was subjected to sexual abuse by his father over an extended period of time. Further, in written and videotaped statements, defendant admitted strangling Dombrova saying he "just lost it" and "snapped" when Dombrova grabbed his genitals and made other sexual advances towards him during their argument. Defendant said he strangled Dombrova with his hands and then used his belt to drag him to a closet in the apartment where the body was hidden. Defendant also admitted to strangling Kevin Bosinski in Buffalo on or about July 25, 2002--14 months before the Dombrova homicide--after meeting him in a bar. He said, on the night of the Buffalo homicide, he went to Bosinski's apartment and fell asleep. According to defendant, when he awoke, he found Bosinski on top of him, kissing and grabbing him. In defendant's words, he "completely lost control" and began to strangle Bosinski with his hands; at some point defendant used his belt to kill Bosinski. Defendant further explained that he told both Dombrova and Bosinski about his history as a victim of sexual abuse.

Defendant was charged with two counts of murder in the second degree (Penal Law § 125.25 [1], [2]), concerning the death by strangulation of Victor Dombrova.*fn1 Prior to the jury trial for the Dombrova homicide, defendant announced he would raise the affirmative defense of extreme emotional disturbance, which, if successful, would mitigate, not negate, the element of intent and reduce the second-degree murder charge to first-degree manslaughter (another intentional crime) (see Penal Law §§ 125.25 [1] [a], 125.20 [2]).*fn2

The People moved in limine, pursuant to Molineux and People v Ventimiglia (52 NY2d 350 [1981]), to permit introduction of defendant's statement regarding the death of Bosinski in Buffalo, arguing, inter alia, that defendant's statement regarding the Buffalo events is highly relevant to trial issues in the Brooklyn homicide because it is necessary to rebut the defense of extreme emotional disturbance. Supreme Court granted the motion to the extent of permitting the People to enter into evidence defendant's statement regarding the Bosinski strangulation and the autopsy report (to establish that Bosinski's death occurred) on a Molineux theory. In the court's view, defendant, by asserting the defense of extreme emotional disturbance, put his state of mind directly in issue, and therefore, "proof of other crimes may be admissible under the intent exception to the Molineux rule." The court further reasoned that evidence of the Bosinski homicide bears on defendant's claim of extreme emotional disturbance because it tended to show that defendant had a premeditated intent to target gay men for violence, thereby countering defendant's claim that his "loss of control," and his actions as a result of this loss of control, arose from an impaired state of mind.

At trial, defendant admitted killing Dombrova and raised a defense of extreme emotional disturbance, claiming his violent response to Dombrova's unexpected sexual advances was due to mental illness caused by protracted sexual abuse he suffered as a child. Defendant's expert--Dr. Sanford L. Drob, a psychologist specializing in the areas of clinical and forensic psychology--testified that someone with defendant's history of abuse and resulting disorders would be prone to "revictimization," and therefore could experience more than one episode of extreme emotional disturbance when he finds himself in certain similar situations. But, the expert was unable to formulate an opinion to a reasonable degree of scientific certainty whether defendant had acted under extreme emotional disturbance in this case because he could not be sure, based on his discussions with defendant, what happened when defendant killed Dombrova. To rebut the defense, the People introduced defendant's statements about his strangulation of Bosinski. The jury rejected the extreme emotional disturbance defense and convicted defendant of murder in the second degree, for killing Dombrova. He was sentenced to an indeterminate prison term of 25 years to life. The Appellate Division affirmed Supreme Court's judgment, and a Judge of this Court granted defendant leave to appeal.

Defendant argues that his statement regarding the Bosinski homicide was inadmissible under Molineux and Santarelli because it had no direct or logical tendency to rebut his extreme emotional disturbance defense. In defendant's view, this evidence only shows that when he was confronted with sexual aggression, he snapped, facts wholly consistent with his extreme emotional disturbance defense. Defendant further contends that, even if the Bosinski evidence had some probative value, it should have been excluded because that value was minimal compared to its highly prejudicial impact in portraying defendant as someone who targets and kills gay men. For the reasons that follow, defendant's arguments are unavailing.


First pronounced by this Court in 1901 in People v Molineux (168 NY 264), the familiar Molineux rule states that evidence of a defendant's uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant's propensity to commit the crime charged (see People v Alvino, 71 NY2d 233, 253 [1987]; People v Allweiss, 48 NY2d 40, 46 [1979]; see also People v Rojas, 97 NY2d 32, 36 [2001] [The basic principle underlying Molineux and its progeny is that "a criminal case should be tried on the facts and not on the basis of a defendant's propensity to commit the crime charged."]). "While such evidence may be marginally relevant to the question of the accused's guilt, its probative value is deemed to be outweighed by its potential for prejudice, and, accordingly, the evidence is excluded as a matter of judicial policy" (Santarelli, 49 NY2d at 247, citing Molineux 168 NY at 294 [remaining citations omitted]). The evidence of a defendant's uncharged crimes and prior bad acts is

"objectionable not because it has no appreciable probative value but because it has too much. The natural and inevitable tendency of the tribunal--whether judge or jury--is to give excessive weight to the vicious record of crime thus exhibited and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused's guilt of the present charge" (1A Wigmore, Evidence § 58.2, at 1212; see Rojas, 97 NY2d at 36--37 ["propensity evidence invites a jury to misfocus, if not base its verdict, on a defendant's prior crimes rather than on the evidence--or lack of evidence--relating to the case before it"]). Thus, "[w]here . . . the evidence proves only criminal propensity and serves no other function in demonstrating defendant's guilt of the crime charged, there is no legitimate basis for its admission. No degree of care, in assessing its value and possible prejudice and in giving cautionary instructions, can render it otherwise" (Alvino, 71 NY2d at 253). The Molineux rule is also meant "to eliminate the risk that a jury, not fully convinced of the defendant's guilt of the crime charged may, nevertheless, find against him because his conduct generally merits punishment" (Allweiss, 48 NY2d at 46 [citations omitted]).

On the other hand, where the proffered Molineux evidence is relevant to some material fact in the case, other than the defendant's propensity to commit the crime charged, it is not to be excluded merely because it shows that the defendant had committed other crimes (see People v Ventimiglia, 52 NY2d 350, 359 [1981] [The Molineux rule's "policy of protection against potential prejudice gives way when evidence of prior crime is probative of the crime now charged"]). Generally, ...

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