Abuse Conviction Falters on Mention of Previous Bad Act

, New York Law Journal

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an empty jury box

ALBANY - A man convicted of sexually abusing a 6-year-old girl must get a new trial because the jury heard statements in which the defendant allegedly described a previous uncharged sexual encounter with a 13-year-old girl, an upstate appellate court has ruled.

The prosecution at Richard Brown's 2011 trial failed to seek a ruling from the trial judge before eliciting statements from the mother of the girl Brown was accused of molesting, a unanimous panel of the Appellate Division, Third Department panel noted in People v. Brown, 105062.

Brown's defense attorney immediately objected to the woman's statement as highly prejudicial and unsuccessfully sought a mistrial from Essex County Court Judge Richard Meyer (See Profile).

Meyer did provide a curative instruction to jurors, the appellate court said, but concluded that was not sufficient.

The panel said the statements were in violation of the long-standing prohibitions enunciated in People v. Molineux, 168 NY 264 (1901), against the use of uncharged crimes or prior bad acts against a defendant unless they fall into the distinct exceptions of showing motive, intent, absence of mistake, common plan or scheme and identity in relation to the crimes for which the defendant is on trial.

None of those exemptions applied in the Brown matter, Justice John Egan Jr. (See Profile) wrote in the Thursday ruling.

"We are persuaded that whatever probative value such proof may possess 'is far outweighed by its obvious prejudice to defendant,'" Egan wrote, quoting People v. Buskey, 45 AD3d 1174 (2007).

Since proof of Brown's guilt was not overwhelming, "we cannot deem the error in this regard to be harmless," Egan said.

It is not evident from the record that the prosecution had another purpose for eliciting the challenged testimony other than "mere criminal propensity," the court said.

Justices John Lahtinen (See Profile), Leslie Stein (See Profile) and William McCarthy (See Profile) joined in the ruling.

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