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People v. Montgomery

Supreme Court of New York, First Department

January 18, 2018

The People of the State of New York, Respondent,
Gentry Montgomery, Defendant-Appellant.

         Defendant appeals from the judgment of the Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered May 24, 2012, convicting him, after a jury trial, of robbery in the first degree and attempted robbery in the first degree, and imposing sentence.

          Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Susan Axelrod and Alan Gadlin of counsel), for respondent.

          Rolando T. Acosta, P.J., Sallie Manzanet-Daniels, Judith J. Gische, Barbara R. Kapnick, Marcy L. Kahn, JJ.

          ACOSTA, P.J.

         At issue in this case is whether defendant was deprived of due process and the right to present a defense when the trial court precluded him from presenting reverse Molineux evidence showing that another person had committed three uncharged robberies similar to the four robberies for which defendant was indicted. Indeed, the prosecutor relied on the theory that defendant was responsible for all four robberies in opposing defendant's request for separate trials, but later argued that there was insufficient evidence to link defendant to the unindicted robberies in opposing defendant's reverse Molineux request. The court also denied defendant's request to introduce his arrest fingerprint card, which defendant argues did not show that he had a scar on the palm of his hand, in contrast to a trial witness's description of her assailant. We find that these ruling were erroneous and, in combination, denied defendant a fair trial.

          Factual Background

         Pretrial suppression hearing evidence, including surveillance video, established seven robberies as part of a pattern committed by the same man: 1. Park View Café on June 2, 2009, at 6:30 a.m.; 2. Twin Donuts on June 8, 2009 at 6:30 p.m.; 3. Mi Pueblo Mexican Grocery on June 8 at 9:40 p.m.; 4. Starbucks on June 8 at 11:00 p.m.; 5. Sanaa Deli1 on June 8 at 11:55 p.m.; 6. United Fried Chicken and Pizza [UFC] on June 9, 2009 at 12:35 a.m.; and 7. Seven Seas Deli on June 9 at 3:50 a.m.

         Each complainant in the June 8 and 9 robberies described the perpetrator as a heavyset, bald black male, about five feet, seven inches, to five feet, nine inches, tall, with a goatee and wearing a New York Yankees shirt. Defendant was identified as a suspect in each robbery following his arrest on street-level drug charges, because he resembled the man in the surveillance video of one of the robberies.

         Witnesses to three of the robberies did not identify defendant as the perpetrator. The UFC witness identified a lineup filler, and the Park View Café and Twin Donut witnesses did not recognize anyone in the lineup as the man who had robbed them.

         The prosecutor obtained an indictment against defendant on the four robberies in which he had been identified: first-degree robbery at Mi Pueblo and Seven Seas, and attempted first degree robbery at Starbucks and Sanaa.

         Defendant moved to sever the counts for trial on the grounds that he would be unduly prejudiced if all four robberies were tried together, because there was "a substantial likelihood" that, if the jury believed he committed one or more of the robberies, it would "bootstrap the evidence in those offenses... to convict him of the other crimes."

         The People argued that a joint trial of all four counts was appropriate because proof of each robbery would be material proof of the others. They contended that each offense was part of a "pattern robbery" and that proof of each "would be relevant at a trial of the other robberies or attempted robberies to help prove the defendant's identity." The court denied the motion.

         At the first trial, the People were unable to produce a witness from the Sanaa Deli robbery, and that count was dismissed. The jury deliberated over the course of three days, repeatedly announcing that it was unable to reach a unanimous verdict. Ultimately, the court declared a mistrial.

         Before the retrial, the prosecution stated that it was dropping another of the robberies from its case and would be proceeding to trial on only two of the seven robberies, the Mi Puebla and Starbucks incidents.

         Defense counsel repeatedly asked the court for permission to introduce reverse Molineux evidence. He sought to show that defendant had not committed the Starbucks and Mi Puebla robberies by showing that he had not committed one or more of the other five robberies. Among other things, counsel sought to introduce surveillance video from three of the robberies not on trial to show that the same perpetrator who committed those robberies, as seen on the videos did not match defendant's description.

         Counsel also sought to introduce what he called "negative identification" evidence. Eyewitnesses to five of the seven robberies, who were unavailable at trial, "could not identify defendant from the PhotoManager System, photo arrays and/or lineups, " and one witness who had testified at the first trial "recanted his prior identification." Counsel also asked for disclosure of evidence of the ...

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