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Issues In NY Criminal Law--Vol. 1, #4©

Issue: Defense right to Rosario material when Molineux evidence is introduced

GENERALLY, evidence of uncharged crimes is inadmissible at a defendant's trial. The prosecutor must focus on the crime that defendant is charged with, rather than on past-charged or uncharged crimes. Exceptions to this rule exist, principally emanating from the 1901 decision of People v Molineux. In Molineux (198 NY 264), the Court of Appeals held that, in evaluating whether uncharged crimes should be introduced, the trial court must weigh the probative value versus the prejudicial effect to the defendant. The main categories of Molineux evidence (MIMIC, to use the bar-exam mnemonic) are: Motive, Intent, Modus operandi, Identification, and Common scheme or plan. See Muldoon and Feuerstein, Handling a Criminal Case in New York, ch. 12 (West Group 1999-2000).

Another leading case in New York, seemingly far afield from Molineux, is People v Rosario. Under this 1961 Court of Appeals decision (9 NY2d 286, 213 NYS2d 448), the prosecution at trial must turn over to the defense all statements of a prosecution witness relating to the witness's trial testimony. The Rosario rule is a strict one: on direct appeal, a per se rule applies for failure to turn over. People v Ranghelle, 69 NY2d 56, 511 NYS2d 580 (1986); Handling a Criminal Case in New York, secs. 8:31-8:39, 8:131-8:137; 22:40 (CPL 440.10 proceedings).

Now, combine the two decisions. Let's say that, after a Ventimiglia hearing (52 NY2d 350, 438 NYS2d 261 (1981)), the court allows the prosecution to introduce evidence of uncharged crimes that the defendant has committed, along with evidence of the crimes charged in the indictment. Must the prosecution turn over to the defense the statements of witnesses made in connection with these priors? Yes, according to two Second Department decisions. See, Handling a Criminal Case in New York, sec. 12:47.

(BY the way, former NYSACDL president Marvin Schecter has a marvelous road-show presentation on the Molineux case.)

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