People v. Resek

Graffeo, J. (dissenting).

Our recent decisions in People v Tosca (98 NY2d 660 [2002]) and People v Till (87 NY2d 835 [1995]) illustrate that, in some circumstances, a trial court has the discretion to admit evidence of uncharged crimes closely related to the charges levied to provide the jury with necessary background information or to complete the narrative of relevant events if the probative value of such evidence exceeds its potential for prejudice. Discretion, by its very nature, provides a court with the flexibility to choose among viable alternative courses of action after considering relevant facts and circumstances with due regard for fundamental fairness to the accused. The trial court in this case faced a dilemma—suppress evidence that defendant possessed a stolen vehicle, which would possibly encourage speculation among the jury regarding the reason the police initially approached defendant, or inform jurors about the underlying facts and circumstances with detailed instructions on the limited purpose being served by the evidence. The court in this case, as we approved in Tosca and Till, chose the latter option. Under our precedent, that decision was not an abuse of discretion. I therefore dissent and would affirm the order of the Appellate Division.

My disagreement with the majority stems not from its view of the facts but from its failure to recognize that the outcome of this case is controlled by our decision in People v Tosca (98 NY2d 660 [2002]). There, the defendant was arrested for criminal possession of a weapon after the driver of a taxicab alerted the police that he had seen a handgun protruding from the defendant’s waist when he tried to hail the cab. During the trial, the People were allowed to introduce evidence of this encounter in order to give the jury an explanation for why the police initially approached the defendant. We found no error by the trial court because “[t]he testimony was admitted not for its truth, but to provide background information as to how and why the police pursued and confronted [the] defendant” (id. at 661). We also noted that the jury had been instructed twice “on the limited use it could make of the testimony and that the testimony was not to be considered proof of the uncharged crime” (id.).1

The facts of this case are parallel in all relevant respects. As in Tosca, the trial court in this case admitted evidence that de*392fendant was driving a stolen car in order to explain the actions of the police and thereby prevent the jury from speculating that he may have been approached and arrested without adequate justification. Here, too, the jury was twice instructed on the limited purpose for which the testimony was being admitted. The first instruction, issued immediately after the People’s opening statement, informed the jury that the evidence would be admitted “for only one purpose and that is to explain whatever it is the police officer said he did thereafter, but there may be no inference whatever against the accused with respect to the theft of the car, whether it was stolen or anything of the sort.” The second limiting instruction was given during the testimony of one of the police officers and reiterated that:

“the only purpose of the evidence that you have heard here with respect to the stolen vehicle is to explain the action of this officer with respect to that. It 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. It is not for that purpose. You may not draw any inferences whatever from it. The only weight that you may give it is whether or not it adequately explains the actions taken by the police thereafter.”* 2

Despite the fact that defendant objected to the introduction of the factual background information at the outset of the trial, the record indicates that defendant was satisfied with the cautionary instructions provided to the jury. At no time did he object to either instruction, ask the court to supplement its instructions with more detailed language or seek to substitute another corrective charge. The defense also did not request any further clarification regarding the stolen vehicle in the judge’s final charge to the jury. In the absence of a timely and specific request or objection to the instruction by defendant, it is unnecessary to reverse the conviction solely on an unpreserved argument regarding the adequacy of jury instructions (see People v *393Whalen, 59 NY2d 273, 280 [1983]; People v Santiago, 52 NY2d 865, 866 [1981]).3

Nor do I see evidence in the record that the jury was “divert[ed]” (majority op at 389) from the charges defendant was facing or that defendant was unduly prejudiced by the actions of the trial court. The record in Tosca had the potential for greater prejudice to the defense than the case before us. At trial in Tosca, the People were permitted to characterize the defendant’s encounter with the taxi driver as an “attempted robbery.” Critically, however, there was nothing to suggest that Tosca actually had attempted to rob the taxicab driver—there was no evidence to indicate that the taxicab driver had been threatened with the firearm or that the defendant had tried to procure the driver’s property, and Tosca was not charged with robbery or any other crime arising from the interaction with the taxi driver. We affirmed Tosca’s conviction even though his jury was not told that he had been (to use the majority’s terminology) “cleared” of the robbery (majority op at 389).

The majority’s attempt to distinguish People v Till (87 NY2d 835 [1995]) is similarly unpersuasive. Charged with the attempted murder of a police officer, the defendant in Till challenged the admission of evidence regarding a series of robberies he allegedly committed, which had led to the confrontation with the police officer. Although Till was originally indicted for the robberies and the attempted murder, the People ultimately obtained a superceding indictment that did not charge robbery. The jury was not informed that the defendant had not been indicted for robbery by the second grand jury. Yet we found no error because the trial court twice cautioned the jury that “the uncharged robbery testimony was provided to it solely ‘for the purpose of background information’ and ‘for the continuity of the events’ and was not to be considered as proof of the crimes at issue” (id. at 837).

Those instructions, as in Tosca, are materially similar to the cautionary language utilized by the trial court in this case. No compelling justification has been advanced by the majority for its conclusion that the Till jury did not have to be told about *394the outcome of the grand jury proceeding but that the jury in this case should have been even in the absence of such a request by defendant. In the end, Till, like Tosca, supports the trial court’s exercise of discretion and, in this case, undermines defendant’s claim that he was deprived of a fair trial.

I disagree with the majority’s conclusion that the situations in People v Cook (42 NY2d 204 [1977]) and People v Stanard (32 NY2d 143 [1973]) are “congruent” (majority op at 390) to the evidentiary determination in this case. To the contrary, in the residential burglary prosecution in Cook, the People introduced evidence that the defendant, one of three intruders, had exposed himself to the female victim and sexually assaulted her. We determined that “the prosecution . . . transcended] legitimate bounds by probing the lurid and intimate details of the uncharged sex crime” because “there [wa]s no indication in the record, apart from the prosecutor’s totally unfounded and highly improper suggestions on summation, that Cook was the individual who sexually abused” the victim (42 NY2d at 208-209). Here, of course, no claim is made that defendant was misidentified as the person who had been driving the stolen vehicle.

The perjury prosecution of a police officer in Stanard relied on extensive testimony by a fellow officer, Frank Serpico, whose testimony “embroiled the defendant and other officers in corruption involving a number of . . . specific transactions with specific gamblers at specific times and places” that were not remotely involved with the pending charges involving false statements to a grand jury (32 NY2d at 145-146). We reversed the defendant’s conviction because Serpico’s testimony of widespread, systemic police corruption, “none of which had any relevancy to the perjury charges . . . added facts involving the defendant and others in a web of activity which could only be considered by the jury reprehensible, resulting in the perjury testimony becoming only background for the evidence of police corruption” (id. at 147). In contrast to the record in this case, it cannot be said that the admission of the police officer’s testimony referring to the stolen car was so prejudicial that the trial court exceeded the permissible boundaries of discretion. Thus, the prejudicial effect of the uncharged crime evidence in Cook and Stanard far exceeded the prejudicial potential of the testimony that was introduced in this case.

I further reject defendant’s contention that the trial court abused its discretion by allowing a police officer to testify as an expert on the packaging and quantity of the narcotics recovered *395from defendant. It is now settled that, in an appropriate case such as this, the People may introduce expert testimony to inform the jury about facts and circumstances indicative of an intent to sell drugs (see People v Hicks, 2 NY3d 750, 751 [2004]). In addition, to the extent defendant now complains that the expert’s testimony strayed impermissibly into the “ultimate issue” in the case (whether defendant intended to sell or personally use the drugs), that argument was not preserved at trial (see generally People v Everson, 100 NY2d 609, 610 [2003]). Accordingly, in the absence of error by the trial court, defendant received a fair trial and his conviction should be upheld.4

Chief Judge Kaye and Judges G.B. Smith and Ciparick concur with Judge Rosenblatt; Judge Graffeo dissents and votes to affirm in a separate opinion in which Judges Read and R.S. Smith concur.

Order reversed, etc.

. One of the instructions in Tosca informed the jury that the evidence was:

“offered solely for the purpose of giving you the full story of the events as they unfolded or completing the narrative as to pos*392sibly explain why the police focused on the defendant, chased him, and ultimately arrested him.
“I charge you that such evidence may be considered by you only for this limited purpose and nothing else. It is not offered to show that the defendant [], in fact, had a dispute or altercation or any contact with a taxicab driver.”

. Nor did the trial court’s efforts to ameliorate any prejudice to defendant cease at this point; the court also ordered that all references to the stolen car be redacted from defendant’s statement to the police.

. The majority misunderstands my posture on this issue. I agree that defendant preserved his objection to the introduction of the uncharged crime evidence. What he did not challenge were the limiting instructions issued by the trial court. As such, the propriety of those instructions is a question that is not properly before us, as our jurisdictional precedent establishes (see Whalen, 59 NY2d at 280; Santiago, 52 NY2d at 866).

. One final comment is necessary. The erroneous admission of uncharged crimes evidence does not necessarily require a new trial. Rather, such an error is amenable to harmless error analysis (see e.g. People v Ventimiglia, 52 NY2d 350, 361 [1981]; People v Cook, 42 NY2d at 208-209). The majority has apparently dispensed with harmless error analysis in this case.