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INTRODUCTION OF DEFENDANT’S TWO-YEAR-OLD FIREARM CONVICTION UNDER THE THEORY THAT DEFENDANT “OPENED THE DOOR” WAS REVERSIBLE ERROR; DEFENDANT HAD NOT QUESTIONED THE PROPRIETY OF THE POLICE CONDUCT OR THE OFFICER’S CONCLUSION THE BULGE IN DEFENDANT’S POCKET WAS A FIREARM; THE JUDGE SHOULD HAVE APPLIED THE TWO-STEP MOLINEUX ANALYSIS, WHICH DOES NOT SUPPORT INTRODUCTION OF THE PRIOR CONVICTION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing defendant’s conviction, determined the People’s introduction of evidence of defendant’s two-year-old possession of a weapon conviction was not justified under the Molineux criteria. A police officer, Lafemina, who was aware of defendant’s prior firearm conviction and a parole warrant for defendant’s arrest, saw a bulge in defendant’s pocket which Lafemina thought could have been a firearm. The defendant ran when approached by Lafemina and, during the chase, entered and exited two buildings. Because Lafemina radioed that defendant may be armed, more that 100 officers responded to the chase. Defendant was charged with burglary based upon the building-entries. No firearm was recovered:

… [O]n the erroneous theory that defendant opened the door, the trial court admitted evidence that defendant was previously convicted of second-degree attempted criminal possession of a weapon ostensibly to explain Lafemina’s actions on the day defendant was arrested. We find this was improper. The trial court should have, but failed to follow the necessary two-step Molineux test: first, determine whether the evidence is relevant to a material issue, and then, if so, whether its probative value outweighs any potential prejudice to defendant. Instead, the court improperly relied on Santana [16 AD3d 346], which does not apply here because defendant never opened the door. …

The court erred by granting the People’s application before defendant raised any issues as to the propriety of the officers’ conduct or as to the accuracy of Lafemina’s belief that defendant was armed … . People v Woody, 2023 NY Slip Op 01263, First Dept 3-14-23

Practice Point: Evidence of a prior conviction can be admitted if the defense “opens the door” to such evidence, even if the evidence would not be admissible under a Molineux analysis. Here the two-year-old firearm conviction was not admissible under Molineux and the defense did not “open the door” by questioning the propriety of the police conduct of the officer’s conclusion the bulge in defendant’s pocket indicated defendant was armed.

 

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PHOTOGRAPH OF DEFENDANT WITH A WEAPON PROPERLY ADMITTED DESPITE THE ABSENCE OF EVIDENCE THE DEPICTED WEAPON WAS USED IN THE CHARGED OFFENSE, JURY WAS PROPERLY INSTRUCTED ON ACCESSORIAL LIABILITY DESPITE THE ABSENCE OF AN ALLEGATION OF ACCESSORIAL LIABILITY IN THE INDICTMENT AND DESPITE THE PEOPLE’S THEORY THAT DEFENDANT WAS THE SHOOTER (FIRST DEPT).
ALTHOUGH THE TWO INDICTMENTS ALLEGED THE SAME MODUS OPERANDI FOR MEDICAID FRAUD, THE CHARGES INVOLVED DIFFERENT PARTIES AND TIME PERIODS; THE WRIT OF PROHIBITION SEEKING TO PRECLUDE PROSECUTION ON DOUBLE JEOPARDY GROUNDS DENIED OVER A DISSENT (FIRST DEPT).
PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT).
PARTY ADMISSIONS WERE NOT HEARSAY AND SHOULD HAVE BEEN CONSIDERED BY SUPREME COURT IN THIS LABOR LAW 240(1), 241(6), 200 ACTION; THE “PARTY-ADMISSIONS” ARGUMENT, ALTHOUGH NOT RAISED BEFORE SUPREME COURT, CAN BE CONSIDERED AND DEEMED DISPOSITIVE ON APPEAL (FIRST DEPT).

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