People v. Resek

OPINION OF THE COURT

Rosenblatt, J.

Defendant was convicted of criminal possession of a controlled substance with intent to sell, based in part on a search of the car he was driving. To enable the prosecution to explain why defendant was arrested, the trial court allowed police officers to testify that they had monitored the vehicle, based on a report that it was stolen. In fact, and unbeknownst to the trial jury, the grand jury had refused to indict defendant for possession of a stolen car. Under the circumstances, the testimony relating to defendant’s possession of a stolen car deprived him of a fair trial.

I.

While conducting surveillance of a reportedly stolen car, police saw defendant enter the vehicle and drive off. They followed and arrested him when he stopped at a gas station. During an inventory search of the car, police recovered nine glassines of heroin from the glove compartment and 14 more when searching defendant at the station house. Based on his possession of the 23 glassines of heroin, a grand jury indicted defendant for criminal possession of a controlled substance with intent to sell, but dismissed the charge of criminal possession of a stolen car.

Before jury selection, the prosecution asked the court to permit the arresting officers to testify as to why they arrested *388defendant. The prosecutor asserted that if this evidence was kept from the jury, it might speculate that the police simply accosted defendant for no reason. Defendant (initially proceeding pro se) objected, arguing that the grand jury had “acquitted” him of charges relating to the stolen car and that introducing those charges at tried would be prejudicial. Agreeing with the prosecution, the court ruled that it was entitled to introduce evidence of the allegation of the stolen car to explain the actions of the police. Defendant’s attorney pressed the objection, again pointing out that the grand jury dismissed the stolen car charges. The court, however, adhered to its ruling after reciting its proposed limiting instruction, telling defendant’s attorney that “[y]ou have an exception.”

At trial, when the court reaffirmed its intention to allow evidence as to the stolen car, defendant’s attorney again objected, stating, “And I just voice my prior objection to including uncharged crimes as evidence before the jury when they are not probative of the crime before the court, that being whether or not—.” At that point, the court cut him off, reiterating its position and stating, “Well, counsel you have your exception and you can have it as many times as you want.”1

After the testimony of one of the police officers, the court instructed the jury that it could consider the evidence as to the stolen car only to explain the action of the officers. Moreover, even though it had been made aware that the grand jury had dismissed the stolen property charge against defendant, the court gave a “limiting” instruction to the jury that “[i]t is not in any way to be inferred by you that the defendant did or did not steal the car or anything of the kind.” (Emphasis added.) The jury found defendant guilty and a divided Appellate Division affirmed. A Justice of the Appellate Division granted leave to appeal to this Court, and we now reverse.

In People v Tosca (98 NY2d 660 [2002]), we held that the trial court did not abuse its discretion in admitting the police officers’ testimony concerning an unidentified cab driver’s report of *389a recent (uncharged) encounter with the armed defendant. The trial court allowed the testimony not for its truth but—as in the case before us—to explain how and why the police pursued and confronted the defendant. Similarly, in People v Till (87 NY2d 835 [1995]), evidence of an uncharged robbery served to establish a motive for the defendant’s attempt to kill or assault the off-duty police officer and thus avoid capture. These cases and others like them may justify this type of evidence, in the court’s discretion.

Under certain circumstances, and when coupled with proper limiting instructions, testimony of this kind may fill in gaps in “interwoven events” (id. at 837) and thus help the jury understand the case in context. But it is a delicate business, and there is the danger that uncharged crime testimony may improperly divert the jury from the case at hand or introduce more prejudice than evidentiary value (see generally People v Rojas, 97 NY2d 32, 37 [2001]). Here, in contrast to Tosca and Till, the prejudice to defendant outweighed the probative value of the evidence. Admission of the testimony under these circumstances was therefore error.

In seeking to introduce the stolen car testimony, the People pointed out that unless the jurors knew why the police arrested defendant, they might conclude that the police wrongfully targeted him or otherwise abused their authority. This was a legitimate concern, but by allowing the evidence to be given over objection and in the one-sided form requested by the prosecution, the court left the jury with an incomplete and prejudicial narrative. This was reversible error and was not ameliorated by the court’s limiting instruction. Indeed, the instruction made matters worse. Rather than simply reveal to the jury that the grand jury dismissed the charge for possession of a stolen car, the court told the jurors that they should not infer that defendant did or did not steal the car. The case before us is thus critically different from Tosca and Till. There was nothing in either of those cases to suggest that the defendant was cleared of the uncharged crime.

Our dissenting colleagues contend that the trial court acted within its discretion in allowing the stolen car testimony “to complete the narrative.” (Dissenting op at 391.) While in a Molineux context we have used this phrase in several cases (People *390v Molineux, 168 NY 264 [1901]),2 these decisions should not be interpreted as automatically allowing the prosecution to introduce evidence of uncharged crimes merely because the evidence is said to complete the narrative or furnish background information. On the contrary, under our Molineux jurisprudence, we begin with the premise that uncharged crimes are inadmissible and, from there, carve out exceptions (see People v Rojas, 97 NY2d 32 [2001]; see also Prince, Richardson on Evidence §§ 4-501—4-516, at 175-194 [Farrell 11th ed 1995]).

In appropriate instances, evidence of uncharged crimes may be allowable as background or narrative because juries might “wander helpless” trying to sort out ambiguous but material facts (People v Green, 35 NY2d 437, 441 [1974]). Here, however, there was no ambiguity that could not have been easily dealt with by far less prejudicial means. In order to allay the prosecutor’s concern that the jury might, without guidance, stray from its appointed task, it would have sufficed to instruct the jurors that the arrest was lawful and that they were not to speculate as to its reasons. Of course, if defendant had placed the propriety of the police action in issue, the events leading up to his arrest ought properly have been admitted to rebut the claim. Here, however, defendant conceded his possession of the recovered drugs he was charged with intending to sell.

Our result is congruent with cases in which we have held that uncharged crimes, although used to complete the narrative, were too prejudicial to be admitted (see, e.g., People v Cook, 42 NY2d 204 [1977]; People v Stanard, 32 NY2d 143 [1973]). We are unable to accept the dissent’s view that the trial court properly chose to “inform jurors about the underlying facts and circumstances” with detailed instructions on the limited purpose of the evidence (dissenting op at 391). Had the narrative in fact been completed, and the trial court told the jury all of the facts and circumstances, the jury would have learned that the grand jury cleared defendant of the stolen car charge.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

. [2] Given defendant’s persistent and pointed protests, we cannot agree with the dissenters that defendant did not preserve his claim. After the court assured the defense that it had an exception (in what sounded very much like exasperation or a rebuke to desist in pressing the point for a fourth time), it is difficult to imagine what more defendant could have done. We will not impose a preservation rule so extreme that defendant, to succeed, would have to antagonize the court or test its patience even further. Such a rule would do nothing to advance the objectives of our preservation doctrine.

. We used this language for the first time in People v Gines (36 NY2d 932, 932 [1975]), followed by People v Cook (42 NY2d 204, 208 [1977]) and most recently in People v Till (87 NY2d 835, 837 [1995]). In other cases we referred to the concept using words like “background material” or “background information” (see, e.g., People v Montanez, 41 NY2d 53, 58 [1976]; People v Green, 35 NY2d 437, 442 [1974]; People v Stanard, 32 NY2d 143, 147 [1973]; People v Tosca, 98 NY2d 660, 661 [2002]).