People v. Arafet

Rose, J. (dissenting).

We respectfully dissent. In its Ventimiglia/Molineux ruling, County Court relied on two exceptions to the general rule that preclude admission of a defendant’s similar uncharged crimes, namely, where such evidence establishes the identity of the perpetrator by his or her unique modus operand! and where it shows a common scheme or plan (see e.g. People v Rojas, 97 NY2d 32, 37 nn 3, 4 [2001]). Notably, the majority considers only the question of whether there was a sufficiently unique modus operand!, no doubt because the evidence clearly fails “to establish a scheme ‘embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others’ ” (People v Simmons, 29 AD3d 1219, 1220 [2006], quoting People v Molineux, 168 NY 264, 293 [1901]; see People v Buskey, 45 AD3d 1170, 1173 [2007]). Even *523under the modus operand! exception, however, defendant’s past crimes were not properly admitted.

While the theft of a trailer and the disposal of a large quantity of merchandise may be a complicated undertaking, there was no evidence here that it is such an extraordinary crime that its mere occurrence reflects a unique and distinctive modus oper- and! identifying defendant as the perpetrator. A careful comparison of the prior thefts with the instant theft reveals no unique pattern in the type of merchandise stolen, no common owner of the trailers or their contents, no unique means of gaining access to the trailers, no common or similar location of the trailers when they were stolen, no unique means or route for transporting the trailers, and no common place or mode of disposal of the trailers’ contents. In addition, there was testimony at trial that it is a “fairly common occurrence” for people to steal trailer loads of merchandise and for empty trailers to be found abandoned along the roadside in certain areas of northern New Jersey.

Here, the only features that are truly the same in the charged and uncharged crimes are the typical ones, namely, the use of a tractor to haul away a trailer containing merchandise and the abandonment of the empty trailer along the roadside in northern New Jersey. Although there also is evidence that, on the day of the charged theft, defendant may have communicated with Nelson Quintanilla, his accomplice in two uncharged thefts, and Jose Gotay, who was not shown to have any prior relationship with defendant, this evidence showed only that very brief calls were placed from one of defendant’s cell phones to Quintanilla’s cell phone in Florida and to Gotay’s warehouse in New Jersey. Since the People presented no evidence as to the content of these calls or the actual roles, if any, played by Quintanilla or Gotay in the charged theft, the evidence of their involvement in the charged theft is significantly different than Quintanilla’s extensive involvement in the uncharged thefts. The lack of proof of their active involvement in the charged crime distinguishes this case from those in which evidence of an accomplice’s criminal relationship with a defendant has been held admissible to identify the defendant as the perpetrator of a similar charged crime in which that accomplice participated (see e.g. People v Whitley, 14 AD3d 403, 405 [2005], Iv denied 4 NY3d 892 [2005]; People v Palmer, 263 AD2d 361, 362 [1999], Iv denied 93 NY2d 1024 [1999], cert denied 528 US 1051 [1999]). Thus, the common features of the charged and uncharged thefts here can hardly be said to convincingly prove a unique or distinctive modus operandi.

*524Moreover, unlike the prior trailer thefts, the evidence regarding the charged theft fails to support the majority’s hypothesis that inside information was used. At trial, the People did not even allege that defendant used inside information to identify what trailer would be stolen. In addition, the testimony at trial indicated that four Xerox trailers had been dropped at the site of the theft, that two were unlocked because they were empty, that the seal on the third trailer, which contained copier toner, had been broken and that only the fourth contained valuable equipment. These facts suggest that the perpetrator checked the trailers and discovered which would be the best one to steal, rather than demonstrating the use of inside information.

Essentially, the People have demonstrated only that defendant specializes in a particular type of crime. Since there are more differences than similarities among these trailer thefts, and the method used was common to the type of crime, defendant’s modus operandi cannot be said to be “sufficiently unique to make the evidence of the uncharged crimes ‘probative of the fact that he committed the one charged’ ” (People v Beam, 57 NY2d 241, 251 [1982], quoting People v Condon, 26 NY2d 139, 144 [1970]; see People v Pittman, 49 AD3d 1166, 1167 [2008]; People v Daniels, 216 AD2d 639, 639-640 [1995]; People v Sanchez, 154 AD2d 15, 24 [1990]; cf. People v Allweiss, 48 NY2d 40, 47-48 [1979]; People v Nuness, 192 AD2d 960, 962 [1993], Iv denied 82 NY2d 723 [1993]; People v Neu, 126 AD2d 223, 225 [1987], Iv denied 70 NY2d 652 [1987]). Thus, the limited probative value of the uncharged thefts is outweighed by their potential for prejudice in suggesting a criminal propensity (see People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Allweiss, 48 NY2d at 47; People v Daniels, 216 AD2d at 639-640). Since the other evidence tending to establish that defendant committed the crimes charged was not overwhelming, we cannot conclude that the error was harmless. Accordingly, we would reverse defendant’s judgment of conviction and direct a new trial.

Mercure, J.P., concurs.

Ordered that the judgment is affirmed.