People v. Arafet

OPINION OF THE COURT

Defendant, convicted of stealing a trailer containing a million dollars worth of merchandise, claims that his rights under People v Molineux (168 NY 264 [1901]) were violated when evidence of four other criminal incidents was admitted at his trial. As to three of the incidents, we hold that there was no error. The evidence relating to the fourth incident should not have been admitted, but the error was harmless.

I

The trailer that defendant was charged with stealing disappeared from a parking lot in Rotterdam, New York, near Exit 25A of the New York State Thruway, around 9:30 a.m. on July 26, 2003. The trailer, emptied of its contents and attached to a tractor, was found abandoned two days later on a highway in New Jersey, some 20 miles from where defendant lived. The evidence linking defendant to the crime, though entirely circumstantial, was compelling.

Records of calls made on defendant’s cellular telephone showed that he traveled northward from his New Jersey home early on the morning of July 26, arriving before the time of the theft in the general area where the theft occurred. They also showed that, beginning around the time of the theft, defendant traveled southward, back toward New Jersey. The fastest route *464from the parking lot of Exit 25A to the area of northern New Jersey where defendant lived and where the trailer was found leaves the Thruway at Exit 15, about 120 miles south of Exit 25A. Records of the New York Thruway Authority showed that a Class 5 vehicle—a tractor-trailer—entered through Exit 25A at 9:35 a.m. on the day of the theft, and left the Thruway at Exit 15 an hour and 38 minutes later. No other tractor-trailer that had entered at Exit 25A left the Thruway at Exit 15 between 10:15 a.m. and 1:30 p.m. on that day. A toll ticket issued to the one tractor-trailer that did travel that route in the hours immediately after the theft bore defendant’s fingerprint.

In addition, the cell phone records identified the recipients of calls that defendant made while on his southward journey. Three of the calls were to a business at 530 Duncan Avenue in Jersey City operated by Jose Gotay, who rented several truck bays there. A fourth call was to Florida, to a cell phone belonging to Nelson Quintanilla. Quintanilla’s phone bills showed that, on July 27, the day after the theft, he began a journey northward from Florida, arriving in New Jersey on July 28, shortly before the abandoned tractor-trailer was found.

Of the four uncharged crimes at issue in this case, three involved the recipients of defendant’s phone calls. Two were offered by the People to prove that Gotay’s truck bays at 530 Duncan Avenue were used as part of a fencing operation. Thus, the People proved that cargo stolen from trailers had been received at Gotay’s facility in December 2000, and again in December 2003 (some five months after the crime with which defendant was charged); there was no evidence connecting defendant to either of these two incidents. The People also proved that, in 1996, Quintanilla had been defendant’s accomplice in the theft of another trailer. The fourth uncharged crime did not involve either Gotay or Quintanilla: The People proved that defendant had stolen a trailer in April 2000, working with accomplices not connected by any evidence to this case.

Evidence of all four incidents was admitted over defendant’s objection under Molineux. A jury convicted defendant of grand larceny and criminal possession of stolen property, and the Appellate Division affirmed, with two Justices dissenting (54 AD3d 517 [2008]). An Appellate Division Justice granted leave to appeal, and we now affirm.

II

The rule of Molineux is familiar: Evidence of uncharged crimes is inadmissible where its only purpose is to show bad

*465character or propensity towards crime (People v Alvino, 71 NY2d 233, 241 [1987]). The rule, we have explained, “is based on policy and not on logic” (People v Allweiss, 48 NY2d 40, 46 [1979]). It may be logical to conclude from a defendant’s prior crimes that he is inclined to act criminally, but such evidence “is excluded for policy reasons because it may induce the jury to base a finding of guilt on collateral matters or to convict a defendant because of his past” (Alvino, 71 NY2d at 241). However, “[w]hen evidence of uncharged crimes is relevant to some issue other than the defendant’s criminal disposition, it is generally held to be admissible on the theory that the probative value will outweigh the potential prejudice to the accused” (Allweiss, 48 NY2d at 47). A commonly used, though nonexhaustive, list names five so-called Molineux exceptions—i.e., purposes for which uncharged crimes might be relevant: “to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant” (Alvino, 71 NY2d at 242; see also e.g. People v Ventimiglia, 52 NY2d 350, 359 [1981]; Molineux, 168 NY at 293). Still, even if technically relevant for one of these or some other legitimate purpose, Molineux evidence will not be admitted if it “is actually of slight value when compared to the possible prejudice to the accused” (Allweiss, 48 NY2d at 47).

Applying these principles to this case, we conclude that the evidence relating to Gotay’s fencing operation and to the crime committed in 1996 by defendant and Quintanilla was admissible. Evidence of the crime committed by defendant in April 2000 was not.

As to the evidence of Gotay’s fencing operation, the issue is easy: This was not Molineux evidence at all. The point of Molineux is to prevent a jury from convicting a defendant because of his criminal propensity. Evidence of two criminal transactions in which defendant was not involved could show nothing about his propensity. The evidence was relevant to the case: It showed that a business defendant called in the hours immediately after the theft was one where stolen goods could be disposed of, and it thus supported an inference that defendant at that moment needed a fence’s services.

The evidence of the 1996 crime, however, does present a Molineux issue, for that crime involved defendant as well as Quintanilla, and could have led a jury to infer that defendant had a propensity for crime. Still, it was not an abuse of discretion to admit the evidence (see People v Dorm, 12 NY3d 16, 19 [2009]). The predicate for its admission was evidence showing *466that defendant called Quintanilla shortly after the theft; that Quintanilla traveled from Florida to New Jersey beginning the next day; and that Quintanilla arrived in northern New Jersey not long before the discovery of the stolen trailer, with a tractor attached, on a highway in the vicinity. Abandonment of the tractor-trailer (unless the thief walked away from it) was a task that required an accomplice with a second vehicle. The evidence supported an inference that Quintanilla provided defendant with the ride he needed.

We have held that evidence of “a distinctive repetitive pattern” of criminal conduct may be admitted under Molineux to show the defendant’s identity (Allweiss, 48 NY2d at 48). Repeated commission of similar crimes with the same accomplice is an example of such a pattern (People v Whitley, 14 AD3d 403, 405 [1st Dept 2005]; People v Palmer, 263 AD2d 361 [1st Dept 1999]). Because the evidence supported a finding that Quintanilla and defendant were working together to commit the crime in this case, Molineux did not require that the jury be kept ignorant of the fact that they had worked together on such a transaction before.

There was, however, no valid ground for admitting proof of the April 2000 incident. The People acknowledge, in substance, that the only relevance of that proof was to show that defendant was an experienced trailer thief. This is not, the People argue, pure propensity evidence because of the nature of the crime—a specialized one, that required unusual skills, knowledge and access to the means of committing it. But we see no justification, at least in a case like this, for creating a “specialized crime” exception to Molineux. No doubt this crime is beyond the skills of the average citizen; most people could not swiftly hook a trailer to a tractor and drive it away. But the crime could probably have been committed by any experienced tractor-trailer driver, and we cannot believe there was no less prejudicial way to prove that defendant had experience in that line of work. This was not a crime “so unique that the mere proof that the defendant had committed a similar act would be highly probative of the fact that he committed the one charged” (People v Condon, 26 NY2d 139, 144 [1970]). Admitting the evidence of the April 2000 incident violated the Molineux rule.

Ill

The outcome of this case thus turns on whether allowing the. jury to learn of defendant’s April 2000 crime was harmless error. We conclude that it was.

*467An error of law may be found harmless where “the proof of the defendant’s guilt, without reference to the error, is overwhelming” and where there is no “significant probability . . . that the jury would have acquitted the defendant had it not been for the error” (People v Crimmins, 36 NY2d 230, 241-242 [1975]). Here, though there was no eyewitness to the crime and defendant did not admit it, the proof can fairly be called overwhelming. The key piece of evidence, of course, is defendant’s fingerprint on the toll ticket.

Though the dissent suggests otherwise (dissenting op at 473), we find the proof that the fingerprint was indeed defendant’s to be extremely clear. A qualified expert testified without contradiction that he had found “at least fifteen obvious points of identification in common” between the fingerprint on the toll card and one known to come from defendant’s left index finger. It is of no significance that defendant shares one characteristic—a “loop” rather than a “whorl” or “arch” demarcation— with most of the population; the 15 points of identification prove the fingerprints match. Much of defense counsel’s cross-examination of the expert was devoted to demonstrating that fingerprint analysis is not absolutely infallible; i.e., that mistakes in fingerprint identification are not unknown to history. Nothing in the record gives any ground for serious doubt about the accuracy of this particular identification.

The fingerprint, combined with the time of the toll ticket’s issuance, shows that, within minutes of the time the stolen trailer disappeared, defendant drove a tractor-trailer onto the New York State Thruway at the exit where the theft occurred.* Thruway Authority records showed that the tractor-trailer defendant was driving left the Thruway at Exit 15, the exit that led toward the northern New Jersey area where defendant lived and the trailer was later found. No other tractor-trailer traveled the same route at approximately the same time. Before and shortly after leaving the Thruway, defendant placed phone calls to a fencing operation in northern New Jersey and to a former accomplice in a trailer theft. Beginning the next day, the former accomplice traveled from Florida to northern New Jersey, arriving there shortly before the trailer and the tractor hooked to it were found abandoned on a highway.

*468All these facts were proved by near-irrefutable evidence and, taken together, they exclude to a virtual certainty any hypothesis of defendant’s innocence. The idea that he happened to be pulling a trailer other than the stolen one, at the same time and over the same route that the stolen trailer would logically have traveled, while the stolen trailer was for some reason elsewhere, borders on the fanciful. The idea that, at the time of this astonishing coincidence, defendant just happened to place phone calls to Gotay’s fencing operation (three times) and to his old accomplice Quintanilla is absurd.

Nor do we see any likelihood that the jury would have acquitted defendant if it had not heard the improperly admitted evidence. The jury properly had before it all the evidence we have just recited. Thus it would have known, without evidence of defendant’s April 2000 crime, not only all the facts pointing to his commission of the 2003 theft, but also that he stole a trailer (with Quintanilla) in 1996. As to both the 1996 and the April 2000 incidents, the jury was instructed that they were “no proof whatsoever that he possessed a propensity or disposition to commit the crimes charged in this indictment or any other crime. It is not offered for such a purpose and must not be considered by you for that purpose.” Of course, there can be no absolute certainty that the jury followed this instruction—but if it did not, the prejudicial effect of the evidence that was admitted in error could not have added much to the effect of the evidence properly admitted. There is no significant probability that the result in this case would have been different if the trial court had, as it should, excluded the evidence of defendant’s April 2000 theft.

Accordingly, the order' of the Appellate Division should be affirmed.