DEFENDANT HAD A RIGHT TO BE PRESENT WHEN THE PROSECUTOR SUCCESSFULLY ARGUED ADDITIONAL MOLINEUX EVIDENCE SHOULD BE ADMITTED AT TRIAL, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defendant’s absence from the judge’s ruling on whether Molineux evidence was admissible violated his right to be present at material stages of the trial. Although defendant was present when the Molineux arguments were made, the prosecutor made further arguments at the time of the ruling, which led to additional Molineux evidence being presented at trial:

… [T]he trial court conducted an initial Ventimiglia hearing with defendant present to address the prosecution’s Molineux application, which sought to admit evidence of defendant’s alleged prior assault on his then-girlfriend. After the parties made their arguments, the trial court postponed the issuance of its ruling. On the date the trial court intended to issue its ruling, it noted that defendant had not yet been produced, and defense counsel stated that he would prefer if the court issued its ruling with defendant present. The court stated that defendant’s presence was not required since it was merely issuing a legal ruling and began ruling on the application. The People then sought to include new factual details of the prior assault not mentioned at the earlier proceeding where defendant was present (i.e. that defendant choked his then-girlfriend to the point that she almost lost consciousness). The trial court advised the prosecutor to leave out any testimony regarding these new details since these facts were not included in the original application. However, the prosecutor stressed that these new facts were “critical” for the jury to understand why the victim feared defendant, and the trial court allowed the prosecutor to elicit testimony from the witness.

Defendant should have been afforded the opportunity to be present given that the prosecutor’s introduction of these new facts, in effect, expanded the original Molineux application and involved factual matters of which defendant may have had peculiar knowledge. Defendant was in the best position to either deny the new factual details, point out errors in the prosecutor’s account of the details, or provide defense counsel with details that would have been useful in advancing his position … . People v Calderon, 2019 NY Slip Op 07707, First Dept 10-24-19