SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

384 

KA 11-00056 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

BENJAMIN S. GIBBS, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (Frank P.

Geraci, Jr., J.), rendered October 20, 2010. The judgment convicted

defendant, upon a jury verdict, of predatory sexual assault against a

child. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law and a new trial is granted on count

one of the indictment. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of predatory sexual assault against a child (Penal

Law §§ 130.50 [4]; 130.96). We agree with defendant that County Court

committed reversible error by admitting evidence of prior bad acts of

sexual abuse against the victim’s mother and another woman. With the

assistance of the police, the victim’s mother recorded a telephone

conversation between herself and defendant, and she made repeated

references to the prior bad acts throughout the conversation in her

attempt to have defendant admit to sexually abusing the victim. We

conclude that the court erred in determining that the references to

the prior bad acts were admissible because they were inextricably

interwoven with the allegations against the victim. In the context of

a recorded call, when references to prior bad acts in the conversation

are “inextricably interwoven with the crime charged in the

indictment,” the entire conversation “may be received in evidence . .

. where . . . the value of the evidence clearly outweighs any possible

prejudice” (People v Vails, 43 NY2d 364, 368-369). “ ‘To be

inextricably interwoven . . . the evidence must be explanatory of the

acts done or words used in the otherwise admissible part of the

evidence’ ” (People v Swanson, 103 AD2d 1024, 1024, quoting People v

Ventimiglia, 52 NY2d 350, 361). Here, we conclude that the disputed

references were not explanatory of the rest of the conversation. The

statements regarding defendant’s prior bad acts were numerous, but
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KA 11-00056 

they could have been redacted from the transcript of the recorded call

without making the statements regarding the victim incomprehensible

(see Swanson, 103 AD2d at 1024). In other words, the statements

concerning the victim are “clearly understandable” by themselves and

are “not dependent upon” the statements concerning defendant’s prior

bad acts (id.). We further conclude that the prejudicial effect of

those numerous references to the prior bad acts outweighed any

probative value, and the references therefore should have been

redacted (see People v Resek, 3 NY3d 385, 389). 

We further agree with defendant that the court abused its

discretion in its Sandoval ruling. The court ruled that defendant

could be cross-examined with respect to a prior offense if he were to

testify because that evidence was already admitted through the

recorded telephone call. In so ruling, the court failed to balance

the probative value of the evidence with the prejudicial effect (see

People v Williams, 56 NY2d 236, 238-239; People v Clark, 42 AD3d 957,

959, lv denied 9 NY3d 960). We agree with defendant that the above

errors are not harmless inasmuch as the proof against defendant was

not overwhelming (see generally People v Crimmins, 36 NY2d 230, 241-

242).

Entered: March 20, 2015 Frances E. Cafarell

Clerk of the Court