Improper Admission of Evidence of Similar (Pending) Criminal Charge under Molineux Required Reversal

The Fourth Department determined a new trial was required where the trial court allowed the prosecution to present evidence (in its direct case) of a pending attempted robbery charge under Molineux to prove identity.  The defendant was on trial for allegedly robbing a hotel clerk in Cayuga County and the Molineux evidence involved the attempted robbery of a hotel clerk in Onondaga County.  The Molineux evidence included the testimony of five witnesses and a video of the attempted robbery.  The Fourth Department wrote:

“Before admitting evidence of other crimes to establish identity, the Trial Judge must find that both modus operandi and defendant’s identity as the perpetrator of the other crimes are established by clear and convincing evidence” (Prince, Richardson on Evidence § 4–514 [Farrell 11th ed]…).  Here, the record establishes that the court ruled that the evidence of defendant’s identity with respect to the attempted robbery would be admissible as a matter of law, but did not determine the relevancy of the identification evidence of the attempted robbery, nor did it properly balance its prejudicial effect as against its probative value… .  Additionally, there is no indication in the record that the court found that the modus operandi and defendant’s identity as the perpetrator of the attempted robbery were established by clear and convincing evidence.  We thus conclude that the case before the jury became a prohibited “trial within a trial”… .  We further conclude that the evidence of the attempted robbery was “sufficiently prejudicial so as to deprive defendant of a fair trial”… .  People v Larkins, 756, 4th Dept 7-19-13