POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Federal and state law demand careful scrutiny of a prosecutor’s attempt to introduce evidence of a defendant’s bad acts committed prior to, and unrelated to, the crime charged. Such scrutiny is necessary because of the danger that the prior bad act will be taken as proving the defendant guilty of the crime charged, simply because of defendant’s purported propensity to commit crime, thus taking attention away from the evidence relating to the specific charge under consideration. Caution regarding prior bad act evidence is especially necessary in jury trials, but the law imposes cautionary rules even when the fact finder is a judge.

The New York Court of Appeals has confronted this issue many times and did so again recently in People v. Denson. In this case, the prosecution pursued charges against a man who made repeated attempts to meet with a ten-year old girl who lived in an apartment in a building in which the defendant worked. These attempts included defendant’s offer to provide the girl with the keys to his apartment; this offer, and all defendant’s other offers to meet – made on at least thirty occasions – were rejected by the girl.

The prosecutor obtained a grand jury indictment against the defendant on charges of attempted kidnapping in the second degree under N.Y. Penal Law §§ 110.00 and 135.20, and endangering the welfare of a child under N.Y. Penal Law § 260.10(1). To support the intent element of the attempted kidnapping charge, the prosecutor sought to introduce evidence of defendant’s 1978 sodomy conviction relating to sexual abuse of his stepdaughter. The prosecution’s theory was that because the victim of the prior case and the potential victim in the case at hand were both young girls and because the prior case involved sexual abuse, the evidence of defendant’s prior conviction was probative to show that he intended to abduct the girl in the case at hand for similar sexual abuse.

Upon the trial judge’s initial rejection of this evidence, the prosecution renewed its request through a hearing in which it presented expert testimony in support of the theory that defendant’s actions in the prior case and in the case at hand showed a pattern of criminal conduct with criminal intention against young girls. The defense provided testimony of its own expert in rebuttal. After the hearing, the judge admitted the evidence of the 1978 conviction, finding it probative evidence of intent, which the law allows as an exception to the rule against evidence of prior bad acts.

After trial in which, among other testimony, both experts testified, the judge, as fact finder in this nonjury trial, convicted the defendant on both charges. On appeal to the Appellate Division, First Department, the convictions were affirmed by a divided vote.

In a decision issued on October 27, 2015, a 5-1 majority of the New York Court of Appeals affirmed the convictions, concluding that the trial court did not abuse its discretion by considering evidence of defendant’s prior conviction. The majority considered that the judge had reason to find this evidence as probative for the issue of defendant’s intent and that such evidence outweighed the danger of prejudice based on propensity.

Judge Eugene Pigott dissented. In his view, the trial court abused its discretion in considering the 1978 sex crime conviction because in the case at hand “no sex crime was involved or charged.” Judge Pigott added that the prior conviction could not be “relevant to show that defendant intended to kidnap the child, as his prior conviction did not include any kidnaping.”

Related Reading:

• People v. Denson, No. 15-130, ___ N.E.3d ___, 2015 N.Y. Slip Op. 07779 (Oct. 27, 2015) (Court’s Official PDF Copy)
• People v. Denson, 114 A.D.3d 354, 980 N.Y.S.2d 434 (App. Div. 1st Dep’t 2014).