This memorandum is uncorrected and subject to revision before

publication in the New York Reports.

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No. 89 

The People &c.,

 Respondent,

 v.

Lennie Frankline, 

 Appellant.

Allen Fallek, for appellant.

Jordan K. Hummel, for respondent.

MEMORANDUM:

The order of Appellate Division should be affirmed.

Defendant Lennie Frankline challenges his conviction,

alleging that the victim’s testimony about his prior act of

violence against her, while generally admissible as nonpropensity

evidence, was prejudicially excessive in scope. Given the trial

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record, we conclude reversal is unwarranted.

At defendant's trial on charges arising from his attempted

murder and assault of his former intimate partner, A.H., she

testified to an attack by defendant one week before the assault

at issue. The court allowed this testimony as an exception to

the general prohibition on evidence of prior bad acts because it

served as background about A.H.’s relationship with defendant, as

well as proof of his intent and motive.1

On the stand, A.H. recounted how she and defendant came to

live together, moved to Niagara County from New York City, and

that sometime later she decided to leave defendant. However,

when she returned to their apartment to pick up her possessions,

defendant confronted her and words escalated to violence. A.H.

described in detail how over the course of the next two to three

days defendant physically, mentally, and sexually abused her,

poured gasoline on her, and threatened to light her on fire. She

eventually managed to escape, and reported the attack to the

police before returning with her mother to New York City. A.H.

next described that approximately a week later, defendant broke

into her mother's home in New York City, and again beat her,

1Although the minutes of the Molineux hearing are apparently

missing from the record, there is no dispute as to the court's

evidentiary determination. The court restated several times

during trial that its initial and continued ruling was that A.H.

could testify about the previous assault because it was

background, intent and motive evidence. Therefore, the record on

appeal is sufficient to permit our review of defendant's

challenge to the trial testimony.

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doused her with gasoline, and attempted to ignite lighters in

front of her, until she was once again able to escape. 

The court provided the jury with three sets of limiting

instructions regarding this evidence; the first immediately

preceding A.H.'s testimony about the Niagara County attack, the

second at the conclusion of her testimony, and then once more

during the court's final jury charge. Each time the court

informed the jury that the testimony concerning the Niagara

County attack was introduced solely to provide background

regarding the relationship between defendant and A.H., that the

People contended it was proof of defendant's intent and motive,

that the testimony was not evidence of defendant's propensity to

commit the crimes charged, nor sufficient to convict defendant of

those New York City crimes, and that the People had the burden to

prove beyond a reasonable doubt all elements of those charged

crimes. 

The jury convicted defendant of attempted murder in the

second degree (Penal Law §§ 110.00, 125.25), assault in the third

degree (Penal Law § 120.00 [1]), two counts of burglary in the

first degree (Penal Law §§ 140.30 [2], [3]), and endangering the

welfare of a child (Penal Law § 260.10 [1]). The Appellate

Division affirmed (123 AD3d 504 [1st Dept 2014]), and a Judge of

this Court granted defendant leave to appeal (25 NY3d 1072

[2015]). We now affirm.

The People may not rely on prior bad acts as evidence of a

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defendant's propensity to commit the crimes charged (People v

Molineux, 168 NY 264, 313 [1901]), but the evidence may be

admissible, as here, for background and to establish a

defendant's motive (id. at 297; see also People v Resek, 3 NY3d

385, 390 [2004]; People v Till, 87 NY2d 835, 837 [1995]). 

Previous acts of intimate partner violence may be nonpropensity

evidence "probative of [a defendant's] motive and intent to

assault [the] victim" and which "provide[s] necessary background

information on the nature of the [defendant and victim's]

relationship" (People v Dorm, 12 NY3d 16, 19 [2009]). "Where

there is a proper nonpropensity purpose, the decision whether to

admit evidence of defendant's prior bad acts rests upon the trial

court's discretionary balancing of probative value and unfair

prejudice" (id.). A court's decision whether to admit the

evidence is reviewed for abuse of discretion (id.). An error in

the court's ruling, however, may be deemed harmless where the

evidence of guilt is overwhelming and there is no significant

probability that the jury would have acquitted but for the error

(People v Crimmins, 36 NY2d 230, 241-242 [1975]).

Defendant concedes that the testimony about the Niagara

County attack was admissible to show background and motive for

the New York City assault, but claims that he was denied a fair

trial because A.H.'s testimony was excessive and highly

inflammatory, making it impossible for the jury to fairly and

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objectively assess the evidence of the New York City assault.2

Essentially defendant argues he was prejudiced by the court's

failure to limit the testimony to a summary discussion of the

Niagara County incident.

Defendant relies on People v Stanard, wherein the Court

stated that lower courts must carefully monitor introduction of

background evidence and take every precaution "lest it spill over

its barriers and distort the jury's contemplation of the

determinative and critical evidence" (32 NY2d 143, 146 [1978]

[internal citation and quotation marks omitted]). In Stanard,

the defendant was charged with perjury for lying to a grand jury

investigating police corruption in a division of the New York

City Police Department. This Court held that the defendant was

entitled to a new trial because he was substantially prejudiced

by Patrolman Frank Serpico's extensive testimonial accounts

regarding numerous acts of corruption, which concerned specific

transactions unconnected and plainly irrelevant to the

defendant's alleged perjury. As the Court explained, where the

background evidence is of such nature and amount that a court

cannot "state with any conviction that evidence heard by a jury

2Defendant argued below that the testimony was inadmissible

to show his intent because intent was inferable from his conduct

during the New York City attack. Since defendant concedes, as

the Appellate Division concluded, that the evidence of the prior

assault was admissible as background and probative of defendant's

motive, we have no reason to opine on his claim that the

testimony should not have been admitted to show defendant's

intent. Moreover, such claim has no impact on our analysis.

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is not prejudicial to a defendant," "any substantial doubt" on

where "to strike a neat balance between possible prejudice to the

defendant, and the indispensability of the challenged evidence to

the People's case . . . should weight the scales in favor of the

defendant" (id. at 147). Thus, because Serpico's testimony did

not help the jury to understand the defendant's actions, and

instead "embroiled" him in general "reprehensible" police

corruption, it destroyed "the reasonable balance between the

claimed importance of this background evidence and its potential

for prejudicing the defendant's case" (id. at 145-147). In light

of the impact of the testimony, the trial court's limiting

instructions did not cure the error, nor was the error harmless

given "the improper totality of the explanatory evidence which

substantially prejudiced defendant's right to a fair trial" (id.

at 147-148).

We cannot say that both defects necessary for reversible

error are present in defendant's case, namely, that the trial

court abused its discretion by failing to limit A.H.'s testimony

and that such error substantially prejudiced the defendant so as

to foreclose a determination of harmlessness. Unlike the

evidence in Stanard, here, A.H.'s testimony concerned the same

parties, and served the nonpropensity purpose of directly

explaining her relationship with the defendant and his motive. 

This is far from a case where "the jury did not require a recital

of such a prologue to understand fully what had taken place in

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the defendant's encounters with [the victim]" (id. at 147). In

the same vein, testimony that the defendant previously attacked

A.H. would not have led the jury to marginalize, relegate to the

background, or ignore the grievous nature of the New York City

assault, which was characterized by physical violence and several

failed attempts at immolation.

Under these circumstances, we perceive no error that

requires a reversal of defendant's conviction. 

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People v Lennie Frankline

No. 89 

FAHEY, J.(concurring):

The majority identifies two “defects necessary for

reversible error” in this case, namely, that the trial court

abused its discretion in failing to limit testimony that

defendant assaulted the victim approximately one week before the

instant crimes occurred, and that such error “substantially

prejudiced the defendant so as to foreclose a determination of

harmlessness” (majority op., at 6). The majority also concludes

that both of those defects are not present here (see id.). In

doing so, the majority has determined that the trial court erred

with respect to the volume of evidence it admitted pursuant to

People v Molineux (168 NY 264 [1901]), but that the misstep is

harmless. I respectfully concur in the result only because, in

my view, the trial court did not abuse its discretion with

respect to the quantity of Molineux evidence that it admitted. 

The question whether to admit evidence of an uncharged

crime or crimes is answered by a familiar balancing test: if

evidence of an uncharged crime or crimes is relevant to an issue

other than a defendant’s criminal disposition, then it may be

admitted with proper limiting instructions upon a finding that

its probativeness outweighs its potential for prejudice (see

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People v Morris, 21 NY3d 588, 594-596 [2013]). “[T]he threshold

[task] of identifying a material issue to which the evidence is

relevant poses a question of law,” but “the balancing of

probative value against potential prejudice is a matter that lies

within the trial court’s discretion” (People v Israel, 26 NY3d

236, 243 [2015] [internal quotation marks omitted]). 

A question with respect to the volume of evidence of an

uncharged crime or crimes to be admitted is subject to the same

discretionary balancing of probative worth against prejudicial

threat (see generally People v Stanard, 32 NY2d 143, 146 [1973]). 

Under the circumstances of this case, the trial court did not

abuse its discretion in admitting all of the victim’s testimony

with respect to the prior assault. In this instance, the

extensive nature of the prior assault, in which the victim was

held against her will for over two days, required extensive

testimony from the victim, even for the limited purpose for which

that evidence was offered (cf. id. at 147). 

Moreover, that testimony was admitted in conjunction

with no less than three curative instructions, through which the

court scrupulously advised that such evidence was to be

considered for only two purposes: to explain the relationship

between defendant and the victim, and as proof of defendant’s

intent and motive. Those instructions, which the jury is

presumed to have followed, offset any potential for prejudice

arising from the admission of the disputed testimony (see Morris,

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21 NY3d at 598). 

Consequently, for the foregoing reasons, I conclude

that the trial court did not abuse its discretion in admitting

the subject evidence, and I would affirm the Appellate Division

order without reference to the harmless error doctrine. 

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

Order affirmed, in a memorandum. Chief Judge DiFiore and Judges

Pigott, Rivera and Abdus-Salaam concur. Judge Fahey concurs in

result in a separate concurring opinion in which Judges Stein and

Garcia concur.

Decided June 9, 2016

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