DEFENDANT TOOK A CELL PHONE PICTURE OF THE VICTIM IN THE SHOWER THROUGH A HIGH WINDOW; HE CLAIMED THE PHOTO WAS TAKEN ACCIDENTALLY WHEN HE WAS TRYING TO PHOTOGRAPH LIGHTNING; DEFENDANT, IN ANSWER TO A QUESTION BY THE POLICE ABOUT WHETHER THIS WAS A “PATTERN,” ADMITTED HE HAD SURREPTITIOUSLY TAKEN SIMILAR PHOTOS OF HIS WIFE; THE PREJUDICIAL EFFECT OF HIS APPARENT ADMISSION TO A “PATTERN” OF SIMILAR BEHAVIOR OUTWEIGHED ITS PROBATIVE EFFECT; NEW TRIAL ORDERED (THIRD DEPT). ​

The Third Department, reversing defendant’s conviction and ordering a new trial, determined that prior bad act “Molineux” evidence should not have been admitted because its probative value was outweighed by its prejudicial effect. Defendant, using his cell phone, had taken a picture of the victim in the shower through a high window. In his interview with the police defendant admitted taking similar pictures of his wife: “When confronted with a conversation that law enforcement allegedly had with his wife and whether the subject conduct was in fact part of a ‘pattern,’ defendant … admitted that he had previously engaged in similar surreptitious photography of his wife.” Defendant claimed the picture of the victim was taken accidentally when he was trying to photograph lightning:

[From the police interview with defendant:] “Now what’s the deal with when I asked your wife if this has been an issue in the past, she says you’ve done it to her, the exact same thing in the shower, and you guys have had blowouts,” adding, “So this has been a pattern, you know, it’s not like it was an accidental lightning strike thing.” Defendant replied, “I understand that. Yes, it’s my wife. I’m madly in love with her. I think she’s absolutely beautiful. Yeah, I’ve done that to my wife.” * * *

A criminal purpose cannot be readily inferred from the generally equivocal act of taking a photograph, later deleted, in the location where defendant was standing. Thus, defendant’s admission to previously taking surreptitious photographs of another woman while she showered because of his sexual interest in her was directly relevant to that legitimate nonpropensity issue … . Further, by inserting an innocent explanation for the charged conduct into the case, defendant’s prior similar acts had obvious relevance as tending to refute the possibility of mistake or accident … . * * *

… [A]lthough the challenged prior bad act evidence was highly probative with respect to the foregoing legitimate purposes, there is no way around the fact that the gratuitous “pattern” allegation made by law enforcement while questioning defendant substantially tipped the scale. It was an abuse of discretion not to redact that portion of the interview, together with defendant’s ambiguous “I understand that” response, prior to admitting the recording into evidence — particularly in view of how excisable it was. People v Siciliano, 2025 NY Slip Op 05721, Third Dept 10-16-25

Practice Point: Consult this decision for an example of evidence which fits a Molineux category [here a seeming admission to a “pattern” of taking surreptitious photos of women in the shower to counter defendant’s claim the photo of the victim in the shower was taken accidentally], but is inadmissible because the evidence is more prejudicial than probative.