People v. Pittman

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of attempted murder in the first degree (Penal Law §§ 110.00, 125.27 [1] [a] [i]; [b]), criminal possession of a weapon in the second degree (former § 265.03 [2]) and criminal possession of a weapon in the third degree (§ 265.02 [1]) arising from an incident in which defendant fired a handgun at a police officer. Contrary to the contention of defendant, “[County] Court’s determination that he was fit to proceed is supported by legally sufficient evidence presented at the competency hearing” (People v Garrasi, 302 AD2d 981, 982 [2003], lv denied 100 NY2d 538 [2003]). Further, the court did not abuse its discretion in failing, sua sponte, to order another competency evaluation or to conduct a second hearing (see id.; People v Moore, 203 AD2d 900 [1994], lv denied 84 NY2d 830 [1994]). Defendant failed to preserve for our review his chai*1167lenge to the legal sufficiency of the evidence of his intent to kill with respect to the attempted murder conviction (see People v Gray, 86 NY2d 10, 19 [1995]), and we reject his further contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

We agree with defendant, however, that the court erred in permitting the People to present evidence concerning his conviction of attempted criminal possession of a weapon in the second degree arising from a 1998 incident in which defendant attempted to shoot a police officer. That evidence was not relevant under any of the Molineux exceptions cited by the People (see People v Molineux, 168 NY 264, 293-294 [1901]). Defendant’s conduct in the 1998 incident and the present incident was not “sufficiently unique to be probative on the issue of identity” (People v Beam, 57 NY2d 241, 252 [1982]), nor was the 1998 incident probative on the issue of motive inasmuch as there was no evidence from which the jury could infer that the 1998 incident provided the motive underlying the instant offenses (see generally People v Namer, 309 NY 458, 462 [1956]). Moreover, evidence of the 1998 incident should have been precluded insofar as it was used to prove intent because, assuming that the People established that defendant firéd at the officer, “intent may be easily inferred from the commission of the act itself’ (People v Alvino, 71 NY2d 233, 242 [1987]; see also People v McKinney, 24 NY2d 180, 184-185 [1969]). Even assuming, arguendo, that evidence of the 1998 incident is probative of some issue other than defendant’s criminal propensity, we conclude that its potential for prejudice outweighed its probative value (see generally People v Hudy, 73 NY2d 40, 55 [1988]; People v Santarelli, 49 NY2d 241, 250 [1980], rearg denied 49 NY2d 918 [1980]). Indeed, we conclude that the evidence of the 1998 incident was, at best, “of slight value when compared to the possible prejudice to” defendant (People v Allweiss, 48 NY2d 40, 47 [1979]), and the error in the admission of that evidence cannot be deemed harmless (see People v Kocyla, 167 AD2d 938, 939 [1990]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

In light of our decision, we need not address the remaining contentions of defendant, including those in the pro se supplemental brief.

All concur except Smith, J.P., who dissents and votes to affirm in the following memorandum.