People v. Till

Tom, J. (dissenting).

I respectfully dissent and would affirm

the conviction.

As noted by the majority, evidence of prior uncharged crimes can be admitted to show intent, motive, knowledge, a common scheme or plan or identity, although that list is by no means exhaustive (People v Alvino, 71 NY2d 233; People v Molineux, 168 NY 264; see generally, Richardson, Evidence §§ 170-181 [Prince 10th ed]). One such exception is where the evidence is necessary to complete the witness’s narrative and to provide a complete, coherent picture of the incident and to place events in the proper context in order to assist the jury in their comprehension of the crime (People v Montanez, 41 NY2d 53; People v Gines, 36 NY2d 932; People v Reyes, 171 AD2d 461, lv denied 77 NY2d 999; People v Mendez, 165 AD2d 751, lv denied 77 NY2d 880; People v Hernandez, 139 AD2d 472, lv denied 72 NY2d 957).

*49In the instant action, defendant was indicted and brought to trial on a number of serious crimes (attempted murder, assault and criminal possession of a weapon), all of which stemmed from his initial approach, and alleged robbery, of the three men on the bridge. This incident acted as a catalyst and set in motion a chain of events which eventually involved three different off-duty police officers, one on his way to work, two on their way home from their tours, a number of on-duty police officers, a small mob of people, a chase, a near gun battle, the alleged attempted murder of a police officer, and the eventual arrest of defendant.

The presentation of the foregoing dynamic, convoluted and rather fast-evolving chain of events, starting anywhere but from the beginning, would present less than a clear and coherent picture of events which might confuse and would certainly lead to needless speculation on the part of the jury (People v Hernandez, supra, at 477; People v Fay, 85 AD2d 512, appeal withdrawn 56 NY2d 593).

Further, after Mr. Chestnut’s testimony concerning the uncharged robbery, the trial court, sua sponte, immediately delivered the following limiting instructions to the jury: "Hold it. I want the jury to understand there is no charge here of anybody taking anything from anybody, it is just here for the narrative and for the continuity of the * * * events that took place that evening, but there is no charge of robbery or the taking of anything from anybody.”

At the conclusion of Mr. Chestnut’s testimony, the trial court reiterated and expanded on its earlier instruction:

"Ladies and gentlemen of the jury, I have allowed the People to introduce evidence that prior to the incident which is the subject of this indictment, that the defendant possessed a gun and put his hand in the pockets of other individuals.
"I instruct you that the fact that the defendant, that this defendant may have committed this act is no proof whatsoever that he possessed a propensity or disposition to commit the crime charged in this indictment or any other crime.
"It is not offered for such a purpose and must not be considered by you for that purpose.
"Instead, the People offer such evidence solely for the purpose of background information that is to explain why the police were chasing the defendant, and solely as a contention of the prosecution.
*50"I charge you that such evidence may be considered by you only for such limited purpose and for none other.
"The fact that I allowed you to hear such evidence should not be considered by you that I have any opinion as to the value to prove that purpose. The sufficiency of such evidence to prove the purpose for which it is offered is solely a question for the jury.
"If you find it insufficient and of no value, disregard it, forget it. If you find it sufficiently probative of that purpose you may give it such weight as you believe it deserves.”

In view of the clear, cautionary instructions given to the jury on two separate occasions by the Trial Judge, and assuming that the jury is composed of reasonable people capable of following the court’s limiting instruction (People v Barnes, 180 AD2d 605, lv denied 79 NY2d 1046; People v Fay, supra, at 513; see generally, People v Davis, 58 NY2d 1102), I would conclude that any possible prejudice resulting from Mr. Chestnut’s testimony was eliminated (People v Vega, 169 AD2d 586).

I would also have found Mr. Chestnut’s testimony concerning the alleged robbery admissible to establish defendant’s motive to commit the crimes he was charged with, and brought to trial for, which includes motive to avoid punishment for the prior crime (People v Mees, 47 NY2d 997, 998; People v Morse, 196 NY 306, 310; People v Cascoigne, 189 AD2d 714, 715, lv denied 81 NY2d 1012; People v Barnes, supra, at 605).

In People v Barnes (supra), we allowed evidence of the defendant’s prior drug-dealing activities to establish his motive in assaulting three women who allegedly sold crack on his behalf and owed him money. In People v Cascoigne (supra), we allowed evidence of defendant’s prior drug-dealing activities to demonstrate his motive in assaulting complainant, who allegedly wanted to bar defendant from his building. Herein, it seems to follow the same logical progression to allow testimony concerning the uncharged robbery in way of explanation as to why defendant fled from the police, attempted to shoot Officer Hector, and put up a violent struggle when the officers eventually caught him. The testimony was, therefore, admissible to show motive and to enhance the jury’s understanding of the crimes (People v Jones, 173 AD2d 331, lv denied 78 NY2d 1012; People v Garcia, 173 AD2d 399, lv denied 78 NY2d 1011; People v Powell, 157 AD2d 524, lv denied 75 NY2d 923).

*51Absent knowledge of the uncharged crime, the jury in this case could speculate that defendant was just attacked or maybe robbed and was fleeing when he mistakenly thought Officer Hector was one of the attackers. At the time of the chase, Officer Hector was off duty, wearing civilian clothing and driving an unmarked vehicle. This would in effect deprive the People of an opportunity to establish a motive for the crimes charged against defendant and permit the jury to speculate on a motive.

Lastly, in view of the overwhelming evidence of guilt presented against defendant, I would view any error regarding the admission of testimony of the uncharged crime as harmless (People v Cook, 42 NY2d 204; People v Crimmins, 36 NY2d 230; People v Jones, 182 AD2d 708, lv denied 80 NY2d 905; People v Egan, 103 AD2d 940).

Murphy, P. J., Rosenberger and Asch, JJ., concur with Sullivan, J.; Tom, J., dissents in a separate opinion.

Judgment, Supreme Court, Bronx County, rendered June 19, 1992, reversed, on the law, and the matter remanded for a new trial.