People v Pittman 2008 NY Slip Op 02236 (3/14/2008)

In a case involving an attempted murder of a police officer, a divided Court issued an excellent Molineux holding. First the Court held that evidence of a prior possession of a weapon was not “‘sufficiently unique to be probative on the issue of identity’ (People v Beam, 57 NY2d 241, 252).” Next it held that the evidence was not probative on the issue of motive “inasmuch as there was no evidence from which the jury could infer that the 1998 incident provided the motive underlying the instant offenses (see generally People v Namer, 309 NY 458, 462). “

Then the Court held that

evidence of the 1998 incident should have been precluded insofar as it was used to prove intent because, assuming that the People established that defendant fired at the officer, "intent may be easily inferred from the commission of the act itself" (People v Alvino, 71 NY2d 233, 242; see also People v McKinney, 24 NY2d 180, 184-185).

Finally, and perhaps most importantly, the Court held that even

assuming, arguendo, that evidence of the 1998 incident is probative of some issue other than defendant's criminal propensity, we conclude that its potential for prejudice outweighed its probative value(see generally People v Hudy, 73 NY2d 40, 55; People v Santarelli, 49 NY2d 241, 250, rearg denied 49 NY2d 918). Indeed, we conclude that the evidence of the 1998 incident was, at best, "of slight value when compared to the possible prejudice to" defendant (People v Allweiss, 48 NY2d 40, 47), and the error in the admission of that evidence cannot be deemed harmless (see People v Kocyla, 167 AD2d 938, 939; see generally People v Crimmins, 36 NY2d 230, 241-242).

Justice Smith dissented. In part, she would have held that the facts of the earlier incident and the one at trial showed a sufficiently unique modus operandi that rendered this evidence probative on the issue of identity, and the identity of the perpetrator was at issue.