This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 175 

The People &c.,

 Respondent,

 v.

Timothy Brewer, 

 Appellant.

Brian Shiffrin, for appellant.

Robert J. Shoemaker, for respondent.

ABDUS-SALAAM, J.:

In this case involving the defendant's sexual abuse of

two minor girls, we must decide whether the trial court abused

its discretion as a matter of law by allowing the People to

elicit evidence of the distinctive manner in which he engaged in

sexual acts with consenting adult women. We conclude that the

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trial court did not err in admitting this evidence, which

corroborated the testimony of the two minor victims, because it

was relevant and highly probative, and its probative value was

not outweighed by the potential for prejudice. 

I. 

Factual Background

The two victims in this case are sisters. When MD was

nine and OD was seven, they lived in Rochester with their mother

and defendant. Though defendant, who was their mother's

boyfriend, was not their biological father, they called him

"dad." At the time they lived there, defendant, their mother, and

numerous other adults used the house to use and sell drugs and

engage in sexual acts. Most often, these activities took place in

a closet defendant called the "bat cave." 

MD and OD each described being sexually abused by

defendant, and the particular method he used: he pulled them into

a closet or back bedroom and forced them to perform oral sex on

him, while he smoked crack with his shirt pulled over his head.

After one of these incidents, MD left defendant and immediately

disclosed to her mother what had happened. The mother gathered up

MD, OD, and the rest of her children and moved out of the house. 

At issue here is the evidence the People sought to

introduce on their direct case pursuant to what they delineated

as a pretrial Molineux application. The prosecutor wanted to

elicit that the abuse of the girls had started before they moved

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to Rochester; that defendant frequently beat them with a belt;

that defendant rented out the "bat cave" to others in the

neighborhood to use as a space for drug use and sex; that when

the police arrested defendant in the house, pursuant to a search

warrant, they recovered crack cocaine; and, most relevant here,

that defendant was a habitual crack user and engaged in oral sex

with the girls' mother and other consenting adult women in the

exact same manner as he had forced the girls to: in a closet,

with his shirt pulled over his head, while smoking crack. The

People planned to introduce this evidence about defendant's

sexual habit through direct testimony from their mother. In their

written application, the People argued that the proffered

evidence would aid the jury in understanding the unique dynamics

of the particular household and family, and in making credibility

determinations. 

The trial court heard argument on the applications and

refused to allow evidence of the beatings with the belt, the

renting out of the closet, and the recovery of drugs during the

execution of the search warrant. With respect to defendant's

consensual oral sex with adult women in the bat cave while

smoking crack, defense counsel argued that the drug use and the

sexual acts were "clearly prejudicial and not probative enough

for [the] Court to exercise its discretion and allow that

testimony." The People argued, in addition to the reasons stated

in their written application, that the evidence was relevant

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because it demonstrated a pattern of behavior. The court ruled

that the People could elicit testimony from the mother about her

own observations and experiences with defendant, but limited the

testimony about other adult women to those for which she was able

to provide names and dates, and had personally observed engaging

in sexual acts with defendant. After hearing testimony from the

mother, both girls, and defendant himself, the jury found

defendant guilty of all charges. On appeal, defendant's judgment

was affirmed by the Appellate Division (129 AD3d 1619 [4th Dept

2015]). A Judge of this Court granted defendant leave to appeal

(26 NY3d 965 [2015]), and we now affirm. 

II. 

The Disputed Evidence

The Appellate Division correctly concluded that

evidence of defendant's drug use was an uncharged crime or prior

bad act, and that it could be properly admitted as Molineux

evidence (see People v Molineux, 168 NY 264 [1901]) because it

was not proffered to show defendant's propensity toward crime,

but to corroborate details of the victims' testimony (129 AD3d at

1620). We agree that evidence of defendant's use of crack cocaine

while engaging in sexual acts was not overly prejudicial in the

context of this trial. Further, the trial court prohibited the

People from introducing evidence of the crack cocaine recovered

from defendant during the execution of the search warrant,

thereby exercising its discretion in permitting evidence of drug

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use only as it pertained to the sex acts described by the

victims.

We further agree with the Appellate Division's

conclusion that evidence of defendant's prior sexual encounters

with the girls' mother and another consenting adult woman was not

Molineux evidence, "because it was neither a crime nor a prior

bad act for him to receive consensual oral sex from an adult in a

closet with his T-shirt pulled over his head" (129 AD3d at 1620).

Molineux analysis is limited to the introduction of a prior

uncharged crime or a prior bad act. It should not be used to

evaluate a prior consensual sexual act between adults.1

In the context of this case, we also note that evidence

of defendant's prior sexual acts with adult women is not

"propensity" evidence in its traditional sense. When we limit

Molineux or other propensity evidence, we do so for policy

reasons, due to fear of the jury's "human tendency" to more

readily "believe in the guilt of an accused person when it is

known or suspected that he has previously committed a similar

1That the People classified it as Molineux evidence, and the

trial court considered it on that basis, does not prevent us from

concluding it was not. Whether it was given that particular

title, the arguments on both sides would remain the same. And

though we hold that this was not properly classified as Molineux

evidence, we note that the trial court did not abuse its

discretion admitting it for the stated non-propensity purposes

provided by the People. Nor do we intend by this decision to

discourage the People from bringing a challenging or problematic

evidentiary issue to the attention of the court and defendant

before trial. 

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crime" (People v Ventimiglia, 52 NY2d 350, 359 [1981], citing

Molineux, 168 NY at 313). But here, that defendant had engaged in

oral sex with consenting adult women, while in a closet smoking

crack with his shirt pulled over his head, showed no propensity

to commit the crimes for which he was on trial. That this

evidence corroborated the girls' accounts does not render it

propensity evidence, because corroboration and propensity are

distinct concepts. Because "there [was] a proper nonpropensity

purpose, the decision whether to admit evidence of defendant's

prior . . . acts rests upon the trial court's discretionary

balancing of probative value and unfair prejudice" (People v

Frankline, 27 NY3d 1113, 1115 [2016], quoting People v Dorm, 12

NY3d 16, 19 [2009]).

The trial court here properly considered and admitted

the evidence using the appropriate factors: its relevance,

probative value to the People's case, and potential prejudice to

defendant (see generally People v Harris, 26 NY3d 1, 5 [2015]).

Here, there is no real dispute that the evidence was relevant and

probative, as it tended to support the girls' account of their

abuse by corroborating the peculiar manner in which defendant

engaged in oral sex. Notably, as the Appellate Division pointed

out, the People established that the girls had never witnessed

defendant's sexual encounters with their mother or other women,

and as the prosecutor argued in her summation, the girls were

describing their own experiences. 

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Finally, the trial court did not abuse its discretion

in concluding that the probative value of the evidence was not

outweighed by potential prejudice. Plainly, almost all relevant,

probative evidence the People seek to admit in a trial against a

defendant will be, in a sense, prejudicial. The People generally

wish to admit evidence supporting the theory that a defendant is

guilty of the crime for which he is charged. Evidence which helps

establish a defendant's guilt always can be considered evidence

that "prejudices" him or her. But the probative value of a piece

of evidence is not automatically outweighed by prejudice merely

because the evidence is compelling. Here, "[t]he point is that

the damage resulted from something other than its tendency to

prove propensity. That suggests that the evidence must have been

relevant to something else, as indeed it was. . . . If this

evidence was damaging, it was because it had the intended effect

-- it undermined the defendant's theory" (People v Hudy, 73 NY2d

40, 72 [1988] [Wachtler, Ch.J., dissenting], abrogated on other

grounds by Carnell v Texas, 529 US 513 [2000]; see also People v

Walker, 83 NY2d 455, 463 [1994] [the People's use of alias

evidence while cross examining defendant was within the sound

discretion of the trial court, and "there is no undue prejudice;

there is only the expected -- and, indeed, intended -- negative

impact that naturally flows from evidence admitted for the

purpose of impeachment"] [emphasis in original]).

Here, the evidence of defendant's prior sexual

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encounters with adult women while using drugs was prejudicial to

him, as it strengthened the People's case by making the victims'

accounts ring true. However, on this record, taking into account

the full extent of the evidence the People sought to introduce,

and the trial court's limitation and in some instances, outright

preclusion thereof, we cannot say that the court abused its

discretion in admitting this particular evidence. A trial court

enjoys broad discretion in deciding whether to admit evidence,

and this Court will disturb the decision "only where the trial

court has either abused its discretion or exercised none at all"

(Walker, 83 NY2d at 459, citing People v Williams, 56 NY2d 236,

238 [1982]). Neither concern is implicated here. 

III. 

Prompt Outcry and Excited Utterance

Finally, defendant argues that the trial court erred in

allowing the mother to testify about MD disclosing the abuse to

her. Generally, the "prompt outcry exception" to the hearsay rule

is limited to testimony that a timely complaint was made, and

"does not allow the further testimony concerning details of the

incident" (People v Rice, 75 NY2d 929, 932 [1990]). But the

People argued that the disclosure was also an excited utterance

because it came immediately on the heels of an abusive encounter,

while MD was crying and sad, "made while the victim was under the

continuing influence of the stress and excitement generated by

the initial event" (People v Medina, 53 AD3d 1046, 1047 [4th Dept

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2008], lv denied 11 NY3d 856 [2008]). The court allowed the

testimony as both a prompt outcry and excited utterance.2 Here,

this brief account of what MD told her mother can be viewed as

both a prompt outcry and an excited utterance, and thus the

admission was proper. 

Accordingly, the Appellate Division order should be

affirmed. 

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Abdus-Salaam. Chief Judge

DiFiore and Judges Pigott, Rivera, Stein, Fahey and Garcia

concur.

Decided November 17, 2016

2The trial court indicated it would allow the testimony as a

prompt outcry and a "spontaneous utterance." Given the arguments

made by the People and the comments of the court, it is clear

that the court used the term "spontaneous utterance"

interchangeably with "excited utterance." 

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