People v. Alfaro

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of robbery in the first and second degrees, assault in the first degree and gang assault in the second degree. In March 1999, with two putative accomplices, defendant assaulted complainant in the freight elevator lobby of a building in New York City. During the incident, the assailants searched complainant’s pockets, removing various personal effects. When the assailants fled, complainant gave chase and defendant was apprehended shortly thereafter with the assistance of passersby. At the time of his arrest, police officers discovered a cigarette lighter crafted to look like a firearm on defendant’s person and a pair of imitation handcuffs on the ground where defendant had been lying when subdued. A subsequent search at the police precinct recovered a matching pair of handcuff keys in defendant’s jacket pocket.

During pretrial proceedings, defendant moved to preclude the introduction of the novelty handcuffs and keys and the imitation firearm, arguing that the items were not used during the commission of the assault and robbery and, therefore, would only serve as prejudicial propensity evidence in violation of People v Molineux (168 NY 264 [1901]). Supreme Court denied the motion, concluding that the items were part of the “res gestae” of the entire criminal transaction.

Even assuming that the subject items constituted prior uncharged crimes evidence under Molineux, the trial court did not err in denying defendant’s pretrial motion to suppress the imitation handcuffs, keys and gun. The items, which could have been used during the commission of the crimes, were recovered upon defendant’s apprehension shortly after the incident and completed the narrative of this particular criminal transaction (see People v Till, 87 NY2d 835 [1995]; People v Resek, 3 NY3d 385 [2004]; People v Wilkinson, 71 AD3d 249 [2d Dept 2010]). Moreover, they were probative of a material issue at trial, namely, the necessary intent to “use[ ] or threaten[ ] the immediate use of physical force upon another person” during the commission of a robbery (Penal Law § 160.00; see People v Medina, 37 AD3d 240 [1st Dept 2007]; People v Cooper, 238 AD2d 194 [1st Dept 1997]). Furthermore, if the admission was error, as defendant contends, it was harmless error in light of the overwhelming testimony identifying defendant as an assailant (People v Crimmins, 36 NY2d 230 [1975]; see generally People v Arafet, 13 NY3d 460, 467 [2009]; People v Ventimiglia, 52 NY2d 350, 361 [1981]; People v Echavarria, 53 AD3d 859, 863 [3d Dept 2008]).

Defendant’s reliance on People v Gillyard (13 NY3d 351 [2009]) is misplaced. In that case, the defendant was convicted of, as relevant here, criminal impersonation in the first and second degrees for impersonating a police officer. The People successfully admitted a handcuff key, found on the defendant’s person weeks after his arrest and unused during the commission of his crimes, to prove his “access to and familiarity with” handcuffs. We held that it was error to admit the handcuff key because defendant’s “access to and familiarity with” handcuffs was not a material issue at trial.* Here, by contrast, the admitted evidence completed the narrative of the criminal incident and was probative of the requisite intent to use or threaten physical force in the commission of a robbery.

Defendant’s remaining contentions have been considered and deemed without merit.

* In Gillyard, although “the evidence [of the handcuff key] could arguably be relevant to show that [the defendant] was convincing as a police officer” (Gillyard, 13 NY3d at 356), the People had sought to introduce the item only on the issue of “access to and familiarity with” handcuffs.