This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be affirmed. Defendant was
convicted of robbery in the first and second degrees, assault in the
first degree and gang assault in the second degree. In March 1999,
with two putative accomplices, defendant assaulted complainant in the
freight elevator lobby of
a building in New York City. During the incident, the
assailants searched complainant's pockets, removing various personal
effects. When the assailants fled, complainant gave chase and
defendant was apprehended shortly thereafter with the assistance of
passersby. At the time of his arrest, police officers discovered a
cigarette lighter crafted to look like a firearm on defendant's person
and a pair of imitation handcuffs on the ground where defendant had
been lying when subdued. A subsequent search at the police precinct
recovered a matching pair of handcuff keys in defendant's jacket
During pre-trial proceedings, defendant moved to preclude the introduction of the novelty handcuffs and keys and the imitation firearm, arguing that the items were not used during the commission of the assault and robbery and therefore, would only serve as prejudicial propensity evidence in violation of People v Molineux (168 NY 264 ). Supreme Court denied the motion, concluding that the items were part of the "res gestae" of the entire criminal transaction.
Even assuming that the subject items constituted prior uncharged crimes evidence under Molineux, the trial court did not err in denying defendant's pre-trial motion to suppress the imitation handcuffs, key and gun. The items, which could have been used during the commission of the crimes, were recovered upon defendant's apprehension shortly after the incident and completed the narrative of this particular criminal transaction (see People v Mill, 87 NY2d 835 ; People v Resek, 3 NY3d 385 ; People v Wilkinson, 71 AD3d 249 [2d Dept 2010]). Moreover, they were probative of a material issue at trial, namely, the necessary intent to "use or threaten the immediate use of physical force upon another person" during the commission of a robbery (Penal Law § 160.00; see People v Medina, 37 AD3d 240 [1st Dept 2007]; People v Cooper, 238 AD2d 194 [1st Dept 1997]). Furthermore, if the admission was error, as defendant contends, it was harmless error in light of the overwhelming testimony identifying defendant as an assailant (People v Crimmins, 36 NY2d 230 ; see generally People v Arafet, 13 NY3d 460, 467 ; People v Ventimiglia, 52 NY2d 350, 361 ; People v Echavarria, 53 AD3d 859, 863 [3d Dept 2008]).
Defendant's reliance on People v Gillyard (13 NY3d 351 ) is
misplaced. In that case, the defendant was convicted of, as relevant
here, criminal impersonation in the first and second degrees for
impersonating a police officer. The People successfully admitted a set
of handcuff keys, found on the defendant's person weeks after his
arrest and unused during the commission of his crimes, to prove his
"access to and familiarity with" handcuffs. We held that it was error
to admit the handcuff keys because defendant's "access to and
familiarity with" handcuffs was not a material issue at trial.*fn1
Here, by contrast, the admitted evidence completed the
narrative of the criminal incident and was probative of the requisite
intent to use or threaten physical force in the commission of a
Defendant's remaining contentions have been considered and deemed without merit.
LIPPMAN, Chief Judge(dissenting):
In her summation the trial assistant urged that the jury should find the victim's accusation of defendant credible by reason of defendant's possession of a cigarette lighter resembling a pistol and toy handcuffs:
"How else do you know that [the victim] was credible and accurate. Well, you know that defendant was armed with handcuffs. And [a] cigarette lighter as [defense counsel] keeps referring to ... it. Although I submit to you if I pulled this [lighter] out, you'd be a little frightened.
"I'm not going to sit here and argue to you that he used these things during the robbery and therefore that makes this a more egregious case.
"What I'm going to say is if you could buy a home made kit to be a robber, right next to the ski-mask you would have the gun and handcuffs" ([emphasis added]).
To avoid precisely this use of the novelty items, defendant moved at the outset of the trial to preclude their introduction in evidence. Defendant's attorney argued that the items had not been used during the charged offenses and were not relevant to their proof. Rather, the evidence of the items and the circumstances of their recovery would only encourage a conviction impermissibly rooted in the supposition that robbery was defendant's line - the sort of thing he did. The court nonetheless admitted the evidence, insisting that it was relevant as "part of the whole of the transaction."
Notably, the People never advanced a theory of relevance to support the receipt of the items. While, subsequent to the court's ruling, the trial assistant, in response to defense counsel's argument that the items would not be probative of intent or identity since they were not used during charged crimes, argued that they might have been used if the victim had not resisted and were therefore relevant to proving intent, this fairly abstruse point was not subsequently pursued and, as noted, was not the basis of the court's ruling. There was, moreover, no intent issue in the case. Defendant conceded that there had been at least an attempted robbery*fn2 ; the core disputed issue was whether defendant had been correctly identified as a perpetrator.
Defendant's attorney requested an instruction forbidding the jury from making propensity-based inferences from the disputed evidence, reiterating his view that the evidence was admissible only if it was in some specified way directly probative of guilt. The request, however, was rebuffed. The court said, "I'm not going to parcel things out and break it down to minutiae. It doesn't amount to a hill of beans anyway." After defendant's attorney made his record, the court reiterated, "I ...