EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY. 

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, affirming the Appellate Division, determined evidence of defendant’s sexual acts with consenting adults was properly admitted to corroborate the testimony of children who described sexual abuse by the defendant. The children alleged defendant took them into a closet where he abused them (oral sex) while he smoked crack cocaine with his shirt pulled over his head. The children’s mother alleged the same scenario with her and other adults. The court noted that the consensual sexual acts with adults were not Molineux evidence because they were not prior bad acts or crimes. The only Molineux evidence was the allegation defendant smoked crack cocaine. Because all the evidence served to corroborate the children’s testimony it was not prohibited “propensity” evidence and the probative value outweighed its prejudicial effect:

… [W]e … note that evidence of defendant’s prior sexual acts with adult women is not “propensity” evidence in its traditional sense. When we limit Molineux or other propensity evidence, we do so for policy reasons, due to fear of the jury’s “human tendency” to more readily “believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” … . But here, that defendant had engaged in oral sex with consenting adult women, while in a closet smoking crack with his shirt pulled over his head, showed no propensity to commit the crimes for which he was on trial. That this evidence corroborated the girls’ accounts does not render it propensity evidence, because corroboration and propensity are distinct concepts. Because “there [was] a proper nonpropensity purpose, the decision whether to admit evidence of defendant’s prior . . . acts rests upon the trial court’s discretionary balancing of probative value and unfair prejudice” … . People v Brewer, 2016 NY Slip Op 07704, CtApp 11-17-16

 

CRIMINAL LAW (EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY)/MOLINEUX EVIDENCE (EVIDENCE OF CONSENSUAL SEXUAL ACTS WITH ADULTS, ALTHOUGH NOT PRIOR CRIMES OR BAD ACTS, PROPERLY ADMITTED TO CORROBORATE CHILDREN’S TESTIMONY)