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.

Mitch Kessler of Cohoes represented Brown on appeal. Kessler said in an interview Friday that "it was clear to me and obviously clear to the court" that the statements from the girl's mother were grounds for reversal.

He said Meyer had expressly warned prosecutors before the trial began that if they intended to introduce Molineux materials, they should let the court know in advance.

Assistant Essex County District Attorney Michael Langey argued for the prosecution.

Brown, now 45, was convicted of five counts of first-degree sexual abuse for touching the girl's vagina and buttocks during two overnight visits she made with her mother to Brown's trailer in Ticonderoga, Essex County, in 2009. He is serving a 12-year sentence.

Statements Admitted

In another decision, a panel unanimously decided that statements Richard Henry made to state police interrogators who were questioning him about possession of child pornography on his home computer should be admitted into evidence.

The ruling in People v. Henry, 106048, reversed a pretrial determination by Albany County Judge Michael Lynch (See Profile) in November 2013 that the statements Henry made to investigators about his Internet service before he was given his Miranda warnings should be suppressed. In addition, Lynch ruled out the prosecution's use of statements Henry subsequently made in the same interrogation in which police said the defendant made "various incriminating" comments.

Henry was charged with 34 counts of possessing a sexual performance by a child.

But the Third Department said Henry's statements before he was given his Miranda warnings were not, as the defendant claimed, the result of a custodial interrogation and subject to suppression.

"During the brief period that preceded the Miranda warnings, defendant was not handcuffed or restrained in any manner and the investigators did not do anything to convey that defendant was not free to leave," Stein wrote for the court. "Moreover, the two questions that preceded the Miranda warnings—the first asked defendant for his address and the second inquired into defendant's Internet service—were investigatory, as opposed to accusatory."

Albany County prosecutors appealed Lynch's suppression decision.

Presiding Justice Karen Peters (See Profile) and Justices Elizabeth Garry (See Profile) and McCarthy joined in the unanimous ruling by Stein.

Assistant Albany County District Attorney Steven Sharp argued for the county.

Christopher Ritchey represented Henry for the Albany County Public Defenders office.

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