Sunday, February 8, 2009

In People v Wallace (2009 NY Slip Op 00915 [4th Dept 2/6/09]) the Court concluded that the defendant's playing a cassette recording of a song was admissible as evidence of defendant's consciousness of guilt.

Although "evidence of consciousness of guilt . . . has limited probative value . . ., its probative weight is highly dependent upon the facts of each particular case" (People v Cintron, 95 NY2d 329, 332-333). Here, the evidence presented at trial established that defendant played a cassette tape of his favorite rap song, entitled "How I Could Just Kill a Man," two or three times over the course of two five-minute car rides shortly after the homicide. The lyrics of the song describe a murder occurring under similar circumstances as those present in the instant case. We agree with defendant insofar as he contends that owning a cassette tape of rap music in general, or of any rap song in particular, is not relevant to the murder charge (see generally United States v McCrea, 583 F2d 1083, 1086). The rap song here, however, was not admitted in evidence merely for the purpose of establishing that defendant generally enjoyed rap music. Instead, the People sought to shed light on the circumstances under which defendant listened to the song, and thus the rap song was properly admitted as evidence of defendant's consciousness of guilt (see generally Cintron, 95 NY2d at 332).

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