[976 N.Y.S.2d 683] Lynn W.L. Fahey, Appellate Advocates, New York City (Barry Stendig of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens (Rebecca Height, Robert J. Masters and John M. Castellano of counsel), for respondent.
[999 N.E.2d 161] In People v. Tosca, 98 N.Y.2d 660, 746 N.Y.S.2d 276, 773 N.E.2d 1014 (2002) and People v. Resek, 3 N.Y.3d 385, 787 N.Y.S.2d 683, 821 N.E.2d 108 (2004), we held that a trial court may, in its discretion, admit evidence of uncharged crimes to provide background information explaining the police actions to the jury if the probative value of the evidence outweighs the prejudice to the defendant, and the evidence is admitted with proper limiting instructions. Our application of these principles led to opposite outcomes in those cases: in Tosca, we held that the trial court did not abuse its discretion by allowing police testimony describing an uncharged crime ( see 98 N.Y.2d at 661, 746 N.Y.S.2d 276, 773 N.E.2d 1014); in Resek, we determined that the prejudicial value of such testimony, admitted with inadequate jury instructions, exceeded its probative worth ( see 3 N.Y.3d at 387, 787 N.Y.S.2d 683, 821 N.E.2d 108).
Relying on Resek, defendant challenges the trial court's decision to allow the People to introduce a recording of a 911 telephone call reporting that a person matching defendant's description committed an uncharged gunpoint robbery, and police testimony describing the radio run they received about the call. We conclude that, under the circumstances of this case, the trial court did not abuse its discretion by permitting this evidence to be admitted, along with several thorough limiting instructions, as background information to explain the aggressive police action toward defendant.
The undisputed facts are as follows. Just after midnight on May 25, 2007, a 911 caller reported that a black male, wearing a white t-shirt with red sleeves, dark pants, and a white Band-aid on his chin, pulled a gun and stole the caller's chain necklace at Beach 21st Street and Elk Drive in Far Rockaway. The caller stated that the perpetrator was with two other black males and that, after the attack, all three men walked down Beach 20th Street toward a CVS store on Seagirt Boulevard.
[999 N.E.2d 162] Police Officers Glenn Ziminski and Edward Moore were on routine patrol in Far Rockaway when they received a radio run from central dispatch reporting the gunpoint robbery. The dispatcher relayed the 911 caller's description of the robber, his [976 N.Y.S.2d 684] possible location, and that he was with two other black males.
The officers responded immediately, driving their marked patrol car with lights and siren activated until they reached Beach 20th Street, where they observed defendant. Having determined that defendant appeared to fit the description conveyed in the radio run, the officers turned their lights and siren off and pulled alongside him. They exited the patrol car and ordered defendant to approach.
What occurred next was contested at trial, but there is no question that the officers acted aggressively toward defendant. Their actions included, at a minimum, grabbing defendant as he approached and forcibly pressing him against the patrol car. The officers ultimately recovered a .22 caliber Beretta semiautomatic pistol either on or near defendant's person. Defendant was arrested and later indicted for resisting arrest ( see Penal Law § 205.30) and two counts of criminal possession of a weapon in the second degree, one charging possession with intent to use the gun unlawfully ( see Penal Law § 265.03[b] ), and one charging possession not in his home or place of business ( see § 265.03 ).
Prior to trial, the People asked the trial court to permit them to introduce a recording of the 911 call and to allow the officers to testify that they stopped defendant because he matched the description relayed in the radio run. The People urged that this evidence would complete the narrative of the arrest and explain the aggressive police actions to the jury, which would be called upon to assess the officers' conduct and credibility. Defendant objected, arguing that the evidence lacked probative value because he planned to admit that he possessed the gun recovered by the police. He also contended the evidence was prejudicial to his defense of temporary innocent possession. Defendant suggested that, rather than admit the 911 evidence, the court merely explain to the jury that " the reasoning for the defendant's stop has been dealt with, [and] is not a matter for your concern," and limit the police officers' testimony on the subject to the following statement: " Pursuant to a radio run, we stopped defendant."
The court ruled that the 911 evidence could be introduced at trial with appropriate limiting instructions. Balancing the probative value of the evidence against its potential prejudice,
the court determined that the 911 call provided necessary background information that put the police actions in proper context for the jury. Without that background information, the court feared the jury would engage in " rampant speculation that the defendant ... was just singled out as a young Black male in Queens ... harassed by the police for no good reason." Suppressing the evidence and issuing defendant's proposed jury instruction, the court reasoned, would not deter such speculation. The court ruled, however, that if defendant took the stand, the People could not cross-examine him about any details concerning the uncharged robbery to challenge his credibility.
During trial, the court gave four limiting instructions to the jury regarding its consideration [999 N.E.2d 163] of the 911 evidence. Each instruction [976 N.Y.S.2d 685] emphasized that the evidence was being admitted solely " to explain the police actions in this case" and not for the truth of what the 911 caller said or to prove that defendant committed a gunpoint robbery. Critically, after the People played the recording of the 911 call, the court told the jury:
" Those statements from the individual that you heard on the 911 CD, they are not being admitted at this trial for the truth of what that person is saying to the 911 dispatcher. Indeed, if you hear any further testimony at this trial relative to those statements made by that caller, that evidence is not being admitted for the truth of what the caller is saying to the 911 dispatcher. As I told you yesterday, that evidence is admitted now and any further evidence related to this issue is admitted for a specific, limited purpose. The evidence is being admitted to explain the police actions, to explain what [they] did ... after getting those transmissions or getting at least the substance of those transmissions relayed to that. That's the only reason it's being admitted. I am cautioning you again, that the defendant is not on trial for robbery. He's not on trial for robbery with a gun and you have to keep all of that in mind."
The People presented testimony from, among other witnesses, Officers Ziminski and Moore, who each testified that they
stopped defendant because he matched the description in the radio run. The officers stated that they observed defendant walking with two black males near the reported location along Beach 20th Street toward Seagirt Boulevard. Ziminski grabbed defendant as he approached and held him against the patrol car, while Moore frisked defendant's clothing, recovering the gun from a rolled-up cuff of his sweatpants. While the officers were examining the gun, defendant allegedly attempted to flee but was caught by Ziminski. A struggle ensued as the officers attempted to handcuff defendant, which ended with Ziminski tackling defendant to the ground. On cross-examination, the officers admitted that they did not recover a chain from defendant or any of the men (the other two men were frisked but not arrested), or retrieve the white Band-Aid, which they testified fell off defendant's chin during the struggle.
Defendant took the stand to present his temporary innocent possession defense, stating that he found the gun on the ground near the CVS store and that he intended to notify the police about it after returning home. These plans were thwarted, however, when the officers stopped him just minutes later on Beach 20th Street. Defendant indicated that he was alone at the time of the police stop, and that he was walking toward Plainview Avenue (rather than toward Seagirt Boulevard as the officers testified).
Defendant's description of the police encounter differed in significant respects from that of the officers. According to defendant, he was trying to tell the officers that he had just found the gun when they [999 N.E.2d 164] pushed him down and grabbed his waist, causing the gun to fall on the ground. The officers then pressed him against the patrol car; defendant denied ever taking his hands off the car and stated that he merely turned his head in shock when the officers said he was " going down for a robbery." [976 N.Y.S.2d 686] The officers allegedly reacted by striking defendant on the back of the head, jumping on him, and hitting him several times in the face, causing injuries that required hospitalization and stitches.
Instructed on the defense of temporary innocent possession of a firearm, the jury returned a ...