State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 106830 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

ANDRE WARD,

Appellant.

________________________________

Calendar Date: May 31, 2016

Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Paul J. Connolly, Delmar, for appellant.

Robert M. Carney, District Attorney, Schenectady (Peter H.

Willis of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the County Court of Schenectady

County (Giardino, J.), rendered June 19, 2014, upon a verdict

convicting defendant of the crimes of predatory sexual assault,

criminal sexual act in the first degree, strangulation in the

second degree as a sexually motivated felony, criminal possession

of a weapon in the third degree, unlawful imprisonment in the

second degree and menacing in the second degree.

Defendant was charged in a seven-count indictment with

predatory sexual assault, criminal sexual act in the first

degree, strangulation in the second degree as a sexually
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motivated felony, assault in the second degree as a sexually

motivated felony, criminal possession of a weapon in the third

degree, unlawful imprisonment in the second degree and menacing

in the second degree.1 The charges stemmed from an incident that

occurred during the early morning hours of May 5, 2013 on

Brandywine Avenue between Union Street and Eastern Avenue in the

City of Schenectady, Schenectady County, at which time defendant

allegedly forcibly compelled the female victim to perform oral

sex on him and, in the course thereof, brandished a knife and

stabbed, choked and threatened to kill her. A lengthy jury trial

ensued and, at the close of the People's case-in-chief, County

Court dismissed the assault count due to legally insufficient

evidence of physical injury. The jury convicted defendant of the

remaining charges, and defendant thereafter was sentenced – in

the aggregate – to a prison term of 20 years to life. Defendant

now appeals.

Defendant initially contends that his conviction of

strangulation in the second degree as a sexually motivated felony

is not supported by legally sufficient evidence and, further,

that the verdict as a whole is against the weight of the

evidence. We disagree. Insofar as is relevant here, "[a] person

is guilty of predatory sexual assault when he or she commits the

crime of . . . criminal sexual act in the first degree . . . and

when . . . [i]n the course of the commission of the crime or the

immediate flight therefrom, he or she . . . [u]ses or threatens

the immediate use of a dangerous instrument" (Penal Law § 130.95

[1] [b]; see People v Pena, 126 AD3d 618, 618-619 [2015], lv

granted 26 NY3d 1042 [2015]), such as a knife (see Penal Law

§ 10.00 [13]). As to the underlying crime, "[a] person is guilty

of criminal sexual act in the first degree when he or she engages

1 The indictment originally – and erroneously – charged

defendant with unlawful imprisonment in the third degree. The

People thereafter realized the error, and County Court – with

defendant's consent – granted the People's motion to amend the

indictment.
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in oral sexual conduct . . . with another person . . . [b]y

forcible compulsion" (Penal Law § 130.50 [1]; see People v

Simmons, 135 AD3d 1193, 1195 [2016], lv denied 27 NY3d 1006

[2016]). To convict defendant of strangulation in the second

degree as a sexually motivated felony, "the People were required

to prove that he applied pressure to the throat or neck of the

victim with the intent to impede her normal breathing or

circulation of blood, and thereby caused her to suffer stupor or

loss of consciousness for any period of time, or any other

physical injury or impairment" (People v Peterson, 118 AD3d 1151, 

1153 [2014], lvs denied 24 NY3d 1087 [2014]; see Penal Law §§

121.11, 121.12) and, further, that he committed this particular

offense (see Penal Law § 130.91 [2]) "for the purpose, in whole

or substantial part, of his . . . direct sexual gratification"

(Penal Law § 130.91 [1]). Further, a person is guilty of

criminal possession of a weapon in the third degree when he or

she "possesses any . . . dangerous knife . . . or any other

dangerous or deadly instrument or weapon with intent to use the

same unlawfully against another" (Penal Law § 265.01 [2]) and

such person "has been previously convicted of any crime" (Penal

Law § 265.02 [1]; see People v Gonzalez, 64 AD3d 1038, 1040

[2009], lv denied 13 NY3d 796 [2009]).2 Finally, "[a] person is

guilty of unlawful imprisonment in the second degree when he [or

she] restrains another person" (Penal Law § 135.05; see People v

Haardt, 129 AD3d 1322, 1323 [2015]), and one commits menacing in

the second degree when "[h]e or she intentionally places or

attempts to place another person in reasonable fear of physical

injury, serious physical injury or death by displaying a . . .

dangerous instrument" (Penal Law § 120.14 [1]; see People v

Colon, 116 AD3d 1234, 1238 [2014], lv denied 24 NY3d 959 [2014]). 

A defendant's intent to commit a particular offense "may be

2 Defendant was arraigned on a special information alleging

that he previously had been convicted of the crime of criminal

trespass in the second degree and admitted the prior conviction;

hence, this element of the offense was established (see People v

Wright, 134 AD3d 1299, 1300 [2015]).
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inferred from [his or her] conduct and from the surrounding

circumstances" (People v Knox, 137 AD3d 1330, 1331 [2016]

[internal quotation marks and citation omitted], lv denied ___

NY3d ___ [May 4, 2016]; see People v Carte, 113 AD3d 191, 195

[2013], lv denied 23 NY3d 1035 [2014]).

The record reflects that, on the evening of May 4, 2013,

the victim went to a friend's house where she consumed "four or

five of the 24-ounce cans" of Keystone Ice beer. The victim's

friend eventually grew tired, but the victim wanted to continue

drinking, so she called a cab with the intention of going to

visit another friend. While she was waiting outside for the cab

to arrive (by then the early morning hours of May 5, 2013), the

victim noticed defendant standing nearby. The victim testified

that she had seen – and had engaged in brief conversations with –

defendant, whom she knew as Dre, prior to this date as they "both

associate[d] with the same people." When the cab finally

arrived, the victim, who acknowledged that she "was pretty

loaded" at this point, entered the cab – as did defendant. The

victim provided the cab driver with the address of her friend

and, approximately 15 minutes later, arrived at the intended

destination. The victim then exited the cab and "just left" –

apparently paying no attention to defendant's whereabouts.

When the victim discovered that her friend was not at home,

she called yet another friend and, finding that person awake,

started walking to her friend's house to "drink more beer" –

stopping along the way at a Getty gas station to purchase

additional alcoholic beverages. The Getty station was closed

but, while there, the victim again saw defendant. The victim

then walked to a nearby Lukoil gas station where she successfully

purchased more beer. When the victim exited that gas station,

defendant was standing outside and asked her "[t]o go to his

house to party." The victim, who denied having a prior sexual

relationship with defendant, walked away and "bl[ew] him off,"

but defendant continued to follow her and attempted to persuade
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her "to go to his house."3 When the victim told defendant to

"f*** off" and tried to walk away, defendant grabbed the victim

from behind by her neck and a struggle ensued. As the victim

continued to struggle, defendant pushed her down a driveway

separating two nearby residences – forcing her to the rear of the

property.

The victim testified that after she and defendant

disappeared from the view of the street surveillance camera,

defendant "started to get more violent." Specifically, the

victim stated that defendant "picked [her] up by [her] neck and

started to strangle [her] for quite a bit of time, hard enough to

where [she] couldn't breathe anymore, and . . . long enough [to]

where [she] thought [she] was going to die" and could feel her

"eyes popping out of [her] head." At that point, defendant "let

go" and the victim fell to her knees – "coughing . . . really

hard," "spitting up a whole bunch of phlegm" and "trying to [be]

able to breathe again." Defendant continued to push the victim

toward the rear of the property and, when the victim "tried to

get away," defendant grabbed her by the arm so hard that she

thought that her "arm was going to break." The victim begged

defendant to stop, in response to which defendant told the victim

to "shut up" or he would kill her.

Upon reaching the rear of the property, defendant and the

victim were – as the victim described it – "blocked in," at which

point – the victim testified – defendant started walking her back

toward the street. En route, defendant stopped, threw the victim

against the wall of a residence, began choking her again and, at

some point, pulled out a knife and stabbed her in the leg. As

the victim "slouched down," defendant punched her in the side of

the head "really, really hard" – causing her to "s[ee] stars" and

3 Video surveillance from a nearby street camera depicts

the victim and defendant walking side-by-side for approximately

seven minutes and, during a portion of this time, the victim is

observed holding defendant's long-sleeve shirt in her hands. 
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feel "discombobulated." Thereafter, while holding the victim

against the wall with one hand, defendant unzipped his pants with

the other and forced the victim to perform oral sex.4 When he

was finished, defendant grabbed the victim by the neck and

dragged her across the street to a nearby parking lot. As

defendant and the victim were crossing the parking lot, they

observed a police car; in response, defendant loosened his grip

and the victim ran away.

The victim's testimony was corroborated to varying degrees

by, among other things, the aforementioned video surveillance,

which depicted a portion of the interaction between the victim

and defendant on the morning in question, as well as the

testimony of an individual who lived near the scene of the

incident. The witness testified that, while working on her

computer early that morning, she heard a noise, "looked outside

and . . . saw a woman crying and this bigger man, AfricanAmerican man, . . . grabbing her forearms . . . [and] pulling her

out of . . . view." According to this witness, the woman was

"sobbing," "had an obvious look of distress on her face" and was

"pulling back" from her assailant. The witness further testified

that, as this encounter unfolded, she heard the woman say "No." 

In response, the witness made two phone calls to 911, and members

of the City of Schenectady Police Department thereafter arrived

at the scene. One of the responding officers recovered a knife

from defendant's person, and another testified that defendant,

while still at the scene of the incident, admitted to engaging in

a sexual encounter with the victim and to placing his hands

around the victim's neck and choking her – with defendant

claiming that the victim "offered to give a blowjob for money,"

that "he was [only] guilty of getting some head" and that "he

4 The victim testified that she did not consent, nor did

she offer to perform oral sex in exchange for either money or

beer.
-7- 106830 

could have swor[n] that she said to . . . choke her."5 Testimony

also was adduced from the medical personnel who treated the

victim following this incident. In addition to the foregoing,

audio recordings of defendant's statements to officers at the

scene, together with the transcripts thereof, as well as

photographs taken of both the victim and the scene following this

incident and the victim's medical records, were received into

evidence.

Contrary to defendant's assertion, we are satisfied that

his conviction of strangulation in the second degree as a

sexually motivated felony is supported by legally sufficient

evidence. As to defendant's weight of the evidence claims,

although a different verdict would not have been unreasonable, we

find – upon reviewing the evidence previously discussed and

granting deference to the jury's credibility determinations –

that the jury's verdict as to each of the sustained charges is in

accord with the weight of the evidence adduced at trial. 

Specifically, the testimony of the victim, wherein she described

the manner in which defendant grabbed, dragged, restrained and

choked her, threatened her with a knife and compelled her to

perform oral sex, together with the video surveillance footage,

the photographic evidence, the medical evidence, the testimony

offered by the witness who heard the victim sobbing and saw her

pull back from her assailant, the testimony of the responding

5 Defendant offered a contrary version of these events

after he was advised of his rights and interviewed at the police

station, at which time he denied that he had engaged in oral sex

with the victim on the morning in question. Although admitting

that he had engaged in sexual encounters with the victim on

"several different occasions" in the past and that he entered the

alley that morning for the purpose of getting a "blowjob," he

insisted that "nothing happened" – he and the victim did not have

sex, he did not choke her and he did not pull a knife on her –

because the victim was "bugging out" about going to meet some

"trick."
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officers, the knife recovered from defendant's person and

defendant's admission that he and the victim engaged in a sexual

encounter and that he choked her, established each of the

required elements of predatory sexual assault, strangulation in

the second degree as a sexually motivated felony, criminal sexual

act in the first degree, criminal possession of a weapon in the

third degree, unlawful imprisonment in the second degree and

menacing in the second degree.

That said, we find merit to defendant's claim that he was

deprived of a fair trial due to County Court's erroneous Molineux

ruling – specifically, the court's decision to permit the People

to introduce evidence on their case-in-chief of a prior alleged

sexual assault perpetrated by defendant against another woman

(hereinafter the previous victim) in May 2011. Prior to trial,

and in the context of their Sandoval application, the People

sought to introduce proof of defendant's 2011 conviction of

assault in the third degree – a conviction that had its genesis

in the alleged sexual assault of the previous victim.6 County

Court fashioned a Sandoval compromise – advising the People that,

if defendant elected to testify, the People could use this

conviction for impeachment purposes on cross-examination, but

they would not be permitted to inquire as to the underlying

facts. The People also, however, sought to utilize those

underlying facts in the context of their Molineux application –

seeking to introduce evidence on their case-in-chief that, in May

2011, defendant sexually assaulted the previous victim in a

remarkably similar fashion as the manner in which he attacked the

victim here. In so doing, the People argued that such proof was

relevant to the issues of identity, modus operandi, intent and

lack of consent. Defendant opposed the People's application,

contending that such proof did not fall within any of the

6 The record suggests that defendant was not charged with

any sex-related offenses relative to the 2011 incident; rather,

it appears that defendant was charged with and pleaded guilty to

only assault in the third degree.
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recognized Molineux exceptions and, in any event, that the

probative value of such evidence was vastly exceeded by its

prejudicial effect. Although acknowledging that it was "a close

call," County Court granted the People's Molineux application on

this point, finding that such proof was probative of identity,

intent and lack of consent. As a result, the People called the

previous victim to testify as part of their case-in-chief.

Once on the stand, the previous victim recounted – at

length and over defendant's continued objection – the details of

her May 12, 2011 encounter with defendant. Specifically, the

previous victim testified that, on the day in question, she and

defendant, who were "friends with benefits," were hanging out in

the hotel room where defendant then lived on Central Avenue in

the Town of Colonie, Albany County. According to the previous

victim, the plan was to "have sex first, then drink, then go to

sleep." After taking a break to purchase more beer, the previous

victim and defendant returned to the hotel room – where defendant

expressed his desire to again engage in sex. The previous victim

testified that when she rebuffed defendant's overtures, defendant

"became angry"; as she started to leave the room, defendant hit

her "upside [her] head and . . . knocked [her] to the floor." 

According to the previous victim, defendant then straddled her –

as she was lying face down on the floor – and continued to hit

her face and head. When she rolled onto her back, defendant

allegedly covered her mouth and nose with his hands, placed his

hands across her throat, "pulled out a knife," held the knife to

her face and said that he was going to kill her. The previous

victim testified that this encounter lasted approximately two

hours, during which time she attempted to engage in sexual

activity with defendant in an unsuccessful effort to appease him. 

Eventually, the previous victim "jumped up, grabbed [her] clothes

and ran out the door, naked, onto Central Avenue." Law

enforcement was notified, defendant was arrested and the

resulting plea to assault in the third degree followed. In

addition to the previous victim's testimony, County Court allowed

the People to enter into evidence – again over defendant's
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objection – photographs taken shortly after this incident, which

depicted the injuries that she had sustained.

Subject to certain limitations imposed by the trial court,

Sandoval permits the People to use "prior convictions or proof of

the prior commission of specific criminal, vicious or immoral

acts for the purpose of impeaching a defendant's credibility" on

cross-examination – should such defendant elect to take the stand

and testify at trial (People v Sandoval, 34 NY2d 371, 374

[1974]). Molineux, on the other hand, allows the People to

introduce on their case-in-chief evidence of a defendant's prior

uncharged crimes or bad acts – assuming, among other things and

as a threshold matter, that such proof falls within one of the

recognized Molineux exceptions (see People v Molineux, 168 NY

264, 293 [1901]). Although evidence proffered under Sandoval and

Molineux serves distinctly different purposes and is admissible

in equally different fashions, the overarching inquiry and

analysis is the same – namely, whether the probative value of

such evidence outweighs its prejudicial effect. Despite the

dissimilarities as to the manner in which the proffered evidence

may be admissible at trial under Sandoval or Molineux – or

perhaps because the same balancing test must occur in either

instance – there does not appear to be any prohibition against

allowing the People to utilize the same criminal transaction as

the basis for both its Sandoval and Molineux applications (see

generally People v Robinson, 239 AD2d 258 [1997]). The problem

in this case arose not as a result of the People's dual use of

defendant's encounter with the previous victim but, rather, was

occasioned by County Court's ruling with respect to the People's

Molineux proffer. Simply put, "the protections afforded by

[County Court's] Sandoval ruling were largely eviscerated by the

court's [decision to] allow[] this evidence on the People's

direct case" (id. at 259).

"Evidence of similar uncharged crimes has probative value,

but as a general rule it is excluded for policy reasons because

it may induce the jury to base a finding of guilt on collateral
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matters or to convict a defendant because of his or her past"

(People v Nicholas, 130 AD3d 1314, 1316 [2015] [internal

quotation marks, brackets and citations omitted]; accord People v

Magee, 135 AD3d 1176, 1181 [2016]). That said, "evidence of

uncharged crimes or prior bad acts may be admitted where they

fall within the recognized Molineux exceptions – motive, intent,

absence of mistake, common plan or scheme and identity – or where

such proof is inextricably interwoven with the charged crimes,

provides necessary background or completes a witness's narrative

and, further, the trial court determines that the probative value

of such evidence outweighs is prejudicial effect" (People v

Rivera, 124 AD3d 1070, 1073 [2015] [internal quotation marks,

brackets, ellipsis and citations omitted], lvs denied 26 NY3d 971

[2015]). Here, even assuming, without deciding, that the

previous victim's testimony at trial and the corresponding

photographs fall within one or more of the aforementioned

Molineux exceptions, we agree with defendant that the prejudicial

effect of such evidence far outweighs its probative value and,

therefore, the People should not have been permitted to introduce

such evidence on their case-in-chief.

The prosecutor herself acknowledged that there were

"striking similarities" between the incident involving the victim

here and the incident in the hotel room involving the previous

victim and, while it is true that a defendant cannot seek to

preclude relevant and probative evidence simply because it

demonstrates that he or she has a tendency to commit certain

crimes in a particular fashion, the prejudice posed by the

previous victim's testimony here is manifest. To be sure, there

is no question – given the video footage obtained from the street

camera – that defendant and the victim were together on the

morning in question and – in light of defendant's admissions to

the responding officers – that he and the victim engaged in a

sexual act at that time. However, the precise nature of that

sexual act, i.e., whether it was consensual or was procured by

forcible compulsion, was one of the key issues for the jury to

resolve – an issue that, in turn, hinged largely upon the
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credibility of the victim. Although the jury chose to credit the

victim's account of the events that had transpired that morning

(and we defer to the jury on this point), the fact remains that

there were certain inconsistencies in the victim's testimony –

inconsistencies that the jury may well have discounted upon

hearing the previous victim's testimony that she, too, was the

victim of a very similar sexual assault that purportedly was

perpetrated by defendant. In other words, whatever doubts the

jury may have had regarding the victim's credibility may have

been laid to rest once they were presented with additional proof

that, in sum and substance, defendant had a propensity – when his

sexual advances were rejected – to turn violent, choke, pull a

knife on and forcibly compel his partners to engage in sexual

activity. To our analysis, the previous victim's testimony was

highly prejudicial, as it related to a relatively recent prior

bad act that was nearly identical to the incident underlying the

crimes for which defendant was on trial. Hence, County Court

erred in permitting the People to proffer such proof on their

case-in-chief. Further, in light of the fact that this case

largely centered upon the credibility of the victim, "we cannot

characterize the error in admitting this evidence as harmless,

notwithstanding County Court's [limiting] instruction[s]" (People

v Magee, 135 AD3d at 1181). Accordingly, we must reverse the

judgment of conviction and remit this matter for a new trial.7

Finally, given our remittal, defendant's asserted Batson

violation, his claim that – once he was convicted of predatory

sexual assault – his conviction of criminal sexual act in the

first degree should have been dismissed as a lesser inclusory

concurrent offense and his challenge to the sentence imposed as

harsh and excessive are academic. Defendant's remaining

contentions, including those addressed to certain of County

Court's evidentiary rulings, have been examined and found to be

7 The exclusion of such proof does not alter our weight of

the evidence analysis. Hence, defendant is entitled to a new

trial, not dismissal of the indictment.
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lacking in merit.

Lahtinen, J.P., Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the judgment is reversed, on the law, and

matter remitted to the County Court of Schenectady County for a

new trial.

ENTER:

Robert D. Mayberger

Clerk of the Court