THE PRIOR BAD ACT EVIDENCE EXCEEDED THAT ALLOWED BY THE MOLINEUX RULING, DEFENDANT’S MURDER CONVICTION REVERSED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling:

Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that they be allowed to offer proof about instances of verbal and emotional abuse by defendant toward the victim. The court granted the application and permitted the People to elicit such evidence. At trial, however, the niece testified that the victim told her that defendant once grabbed her arm in a store because he did not like who she was talking to and that bruises on her legs were caused by defendant. The niece further testified that she observed defendant kick the victim in the stomach. That said, incidents of physical abuse by defendant were not part of the People’s Molineux application. As such, the niece’s testimony, some of which was hearsay, exceeded the scope of the court’s Molineux ruling and deprived defendant of a fair trial … .

Because the evidence of defendant’s guilt was not overwhelming, there must be a new trial … . We note that defendant did not object to the niece’s testimony and, consequently, failed to preserve this argument . Despite this infirmity, we deem it appropriate under the particular circumstance… s of this case to exercise our interest of justice jurisdiction and reverse the judgment (see CPL 470.15 [6] [a]). People v Callahan, 2020 NY Slip Op 04618, Third Dept 8-20-20