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