Wednesday, September 24, 2008

n a number of recent decisions the Fourth Department has approved the admission of uncharged crime evidence despite the failure of the People to first obtain a pretrial Ventimiglia (52 NY2d 350) ruling. Most recently, in People v Maclean, 2008 NY Slip Op 01188 [4th Dept 2/1/08] the Court held that

We reject the contention of defendant that he was deprived of a fair trial when the court allowed the People to elicit evidence concerning uncharged crimes without first obtaining a Ventimiglia ruling. The court has discretion to admit evidence despite the failure of the People to provide advance notice of their intent to present such evidence (see People v McLeod, 279 AD2d 372, lv denied 96 NY2d 921; see generally People v Robinson, 28 AD3d 1126, 1128, lv denied 7 NY3d 794), particularly where the defendant was aware of the evidence (see Robinson, 28 AD3d at 1128; People v Himko, 239 AD2d 661, 662, lv denied 90 NY2d 906).

In Robinson (28 AD3d 1126 [4/28/06]), the Court held that

Defendant has failed to establish that he was prejudiced by the fact that the Ventimiglia evidence was deemed admissible as a result of an offer of proof made to the court during the sidebar conference at trial. "A defendant is not entitled to have such a [Ventimiglia] hearing conducted before trial" (People v Torres, 300 AD2d 46, 46 [2002], lv [*2]denied 99 NY2d 633 [2003]) and, furthermore, an offer of proof is acceptable where, as here, the defendant is aware of the proposed testimony (see People v Himko, 239 AD2d 661, 662 [1997], lv denied 90 NY2d 906 [1997]; see also People v Glass, 259 AD2d 989, 990 [1999], lv denied 93 NY2d 924 [1999]).
See also the decision of the Court in People v Small 2008 NY Slip Op 00855 [2/1/08)

The Maclean decision does not make clear whether there was ever a ruling on the admissibility of the evidence of uncharged crimes – either at a pre-trial hearing or in an offer of proof during the trial. Obviously, the content of defense counsel’s voir dire, opening statement, and questions to witnesses is impacted by counsel’s understanding as to the evidence which will be admitted at trial. Apparently, the Fourth Department no longer believes that there is a requirement that the People give pre-trial notice of intent to elicit such evidence. Notably, none of the decisions the Court cites in support of its holding are from the Court of Appeals. One would think that a relaxation or outright rejection of a requirement that the admissibility of evidence of uncharged crimes be determined pre-trial is a matter of statewide significance which the Court of Appeals should want to consider.

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