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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 47 

The People &c.,

 Respondent,

 v.

Reginald Powell, 

 Appellant.

Salvatore A. Gaetani, for appellant.

Maria I. Wager, for respondent.

GARCIA, J.:

In People v Primo, we rejected the notion "that

evidence of third-party culpability occupies a special or exotic

category of proof" requiring a heightened evidentiary standard

for admission (96 NY2d 351, 356 [2001]). Instead, we clarified

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that third-party culpability evidence should be evaluated in

accordance with ordinary evidentiary principles by balancing the

proffered evidence's probative value against its potential for

undue prejudice, delay, and confusion. Defendant Reginald Powell

challenges the Primo standard as constitutionally deficient in

light of the Supreme Court's subsequent ruling in Holmes v South

Carolina (547 US 319 [2006]). We now confirm that the standard

set forth in Primo does not infringe upon a defendant's

constitutional right to present a complete defense as set forth

in the Sixth and Fourteenth Amendments. Applying that standard

here, we conclude that the trial court did not abuse its

discretion by precluding defendant's ill-defined and speculative

third-party culpability evidence.

Jennifer Katz was murdered on or about December 28,

2010. The police discovered Katz's body in her bedroom closet;

her hands were bound behind her back, fabric was tied around her

neck, and she was wrapped in bedding. She died from a single

stab wound to the neck.

Defendant's brother, Warren Powell, was a sanitation

worker and his collection route included Katz's house. Warren

and Katz had a prior relationship and cohabited in Katz's house

for five or six years. During that time, Katz purchased a

$500,000 life insurance policy that named Warren as the

beneficiary. The couple separated in the spring of 2010, several

months before Katz's death. After their separation, Katz and

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Warren remained on good terms. Warren would on occasion use the

entry code for the garage door to gain access to Katz's house. 

On Warren's recommendation, Katz hired defendant to do

gardening and other work. On December 27, 2010, a witness saw

defendant shoveling snow from Katz's driveway. Katz was last

seen the next day, December 28, at approximately 11:00 a.m. 

About forty minutes later, an unanswered one-minute phone call to

Warren was made from Katz's phone.

On December 29, Warren and his coworker noticed that

Katz had left her garbage cans at the curb from the day before

and failed to leave any recyclables at the curb for collection. 

Warren and his coworker found this strange because Katz was

meticulous about retrieving her empty garbage cans and placing

recyclables out for collection.

The following evening, before police discovered the

body, they stopped defendant, who was driving Katz's car, for a

routine traffic violation. Defendant fled on foot, but was

apprehended after a short chase. Women's jewelry was found in

defendant's possession. He told the police that he did not have

a driver's license, that he lacked permission to use Katz's car,

and that he was on parole. 

Defendant made a number of voluntary statements to the

police, including that he had discovered Katz's body in a closet

in her home and that he feared he would be blamed for her murder

because he was on parole. He admitted that he fled the scene

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after taking some of Katz's jewelry and her car. Prior to his

arrest, defendant had attempted to sell Katz's car for a fraction

of its value. Defendant initially denied that he had sexual

intercourse with Katz, but later asserted that they had been

intimate on prior occasions. Although defendant admitted finding

the body, he denied that he killed Katz. 

The People presented forensic evidence that defendant's

DNA was present on several pairs of men's underwear in the hamper

in Katz's bedroom. His DNA was also found in Katz's vagina and

on her underwear, as well as on some bedding. Defendant's DNA

also matched DNA taken from Katz's right hand nail clipping. 

Phone records demonstrated that defendant's phone was located in

the area near Katz's house at certain times on December 25, 26,

27, 28, and 30.

On December 30, after the police arrived at Katz's

house, Katz's friend called Warren to inform him of the police

activity. Warren called Katz and sent her a text message, but he

did not go to the house.

Before trial, the People moved to preclude defendant

from introducing evidence that Warren was the beneficiary of

Katz's $500,000 life insurance policy and from mentioning the

policy in his opening statement. In response, defense counsel

argued that Warren "may have a motive" and "may be a person of

interest in the case." He further argued that "other people"

might also have had a motive to kill Katz. 

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The trial court granted the People's motion, concluding

that defendant failed to reach the threshold to admit third-party

culpability evidence. Stating that defendant could not "have it

both ways," the court noted that "it is not clear that

[defendant] is actually accusing [W]arren . . . of doing the

murder. And that is an essential element of third-party

culpability." The court left open the possibility that it could

change this ruling "depending on how the evidence [was] presented

throughout the trial" or if additional evidence came to light

supporting the contention.

During trial, defense counsel repeatedly denied that he

was attempting to prove third-party culpability, insisting that

he was "not making an accusation yet," but "simply gathering the

facts" "to lay a foundation, in case I do want to make that

third-party accusation." The court reiterated to defense counsel

that he must "make an offer of proof" demonstrating the

"relevance and materiality" of any proffered third-party

culpability evidence. The court further stated that the evidence

could not be "speculative" or "misleading."

Nevertheless, defense counsel continued his attempt to

"show that there is evidence in the case someone else could have

killed [Katz]. Anyone else," while insisting he was "not trying

to do third-party culpability." Defense counsel's ambivalent

articulation of his strategy continued throughout the trial,

during which he represented to the court that he was "not

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accusing" Warren, implied that he might accuse defendant's

girlfriend, and also proffered that "other people could have"

committed the murder.

Warren testified at the trial, but the court limited

defendant's cross-examination. On direct examination, Warren

testified that Katz had asked him to move out of the house about

six months before the murder, but defendant was precluded from

exploring the reasons for the couple's separation. The court

also limited inquiry into Warren's failure to check on Katz after

he noticed that the empty trash cans had not been retrieved and

into his reaction upon hearing of police activity at Katz's

house. During cross-examination, Warren denied that he made a

statement to his sister that he could never forgive defendant if

it was true that defendant had engaged in a sexual relationship

with Katz. The court prevented defendant from calling the sister

as a witness to refute Warren's denial. 

The jury found defendant guilty of murder in the first

degree and several other crimes, and defendant was sentenced to

life imprisonment without parole. On defendant's appeal, the

Appellate Division affirmed (125 AD3d 1010 [2d Dept 2015]),

holding that the trial court "properly precluded . . . defendant

from presenting evidence of third-party culpability, since the

proposed evidence was based on mere speculation" (id. at 1012). 

A Judge of this Court granted defendant leave to appeal (25 NY3d

1076 [2015]). We affirm.

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On appeal, defendant argues that New York's standard

for admitting third-party culpability evidence fails to

adequately protect a defendant's constitutional right to present

a complete defense. The main thrust of defendant's argument at

trial was that the proffered third-party culpability evidence was

admissible under the Primo standard, not that the standard was

unconstitutional. Nevertheless, defendant presented his

constitutional claim to the trial court, and the court rejected

it. As such, defendant's constitutional argument is preserved

(see CPL 470.05 [2]), but, for the reasons that follow, is

without merit.

As the Holmes Court acknowledged, states "have broad

latitude under the Constitution to establish rules excluding

evidence from criminal trials" (Holmes, 547 US at 324 [internal

quotation marks and citation omitted]). That latitude is

limited, however, by the Fourteenth Amendment's Due Process

Clause and the Sixth Amendment's Compulsory Process and

Confrontation Clauses, which guarantee "criminal defendants a

meaningful opportunity to present a complete defense" (id.

[internal quotation marks and citation omitted]; see People v

Carroll, 95 NY2d 375, 385 [2000]). A defendant's right to

present a defense "is abridged by evidence rules that infring[e]

upon a weighty interest of the accused and are arbitrary or

disproportionate to the purposes they are designed to serve"

(Holmes, 547 US at 324 [internal quotation marks and citation

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omitted]).

In Holmes, the Supreme Court invalidated South

Carolina's rule precluding a defendant from introducing "proof of

third-party guilt if the prosecution ha[d] introduced forensic

evidence that, if believed, strongly support[ed] a guilty

verdict" on the ground that it violated a defendant's right to

have a meaningful opportunity to present a complete defense (id.

at 321). In applying that rule, "the trial judge d[id] not focus

on the probative value or the potential adverse effects of

admitting the defense evidence of third-party guilt"; rather the

inquiry improperly focused on the strength of the prosecution's

case (id. at 329). The South Carolina standard did not

rationally serve the justified end, namely "focus[ing] the trial

on the central issues by excluding evidence that has only a very

weak logical connection to the central issues" (id. at 330). 

While acknowledging that exclusion of defendant's

evidence under such a test is prohibited by the Constitution, the

Supreme Court affirmed that "well-established rules of evidence

permit trial judges to exclude evidence if its probative value is

outweighed by certain other factors such as unfair prejudice,

confusion of the issues, or potential to mislead the jury" (id.

at 326) and that a "specific application of this principle is

found in rules regulating the admission of evidence proffered by

criminal defendants to show that someone else committed the crime

with which they are charged" (id. at 327).

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The standard articulated in Primo is fully consistent

with the Holmes principles discussed above. Unlike the rule at

issue in Holmes, the standard clarified by this Court in Primo

focuses exclusively on the probative value of the third-party

culpability evidence as weighed against its potential

countervailing adverse effects.

In Primo, we rejected the "clear link" articulation of

this standard that the Appellate Division apparently gleaned from

our decision in Greenfield v People (85 NY 75 [1881]), noting

that "[t]he Greenfield Court . . . said nothing to suggest that

it was fashioning a new or specialized test for evidence of

third-party culpability" (Primo, 96 NY2d at 354-355). 

Accordingly, in Primo, we confirmed that no heightened standard

exists for admission of third-party culpability evidence; instead

admissibility of such evidence should be reviewed "under the

general balancing analysis that governs the admissibility of all

evidence" (id. at 356). In other words, courts should "exclude

evidence of third-party culpability that has slight probative

value and strong potential for undue prejudice, delay and

confusion" (id. at 357) or where the evidence is so remote and

speculative that it does not sufficiently connect the third party

to the crime (see Holmes, 547 US at 327). We have reaffirmed

this evidentiary standard in People v Negron (26 NY3d 262, 268

[2015]) and People v Schulz (4 NY3d 521, 528 [2005]).

The Primo standard for third-party culpability evidence

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-- the general evidentiary balancing test -- does not infringe

upon a defendant's constitutional right to present a complete

defense. As the Holmes Court noted, rules applying the standard

balancing test of prejudice versus probative value to proffers of

third-party culpability evidence are "widely accepted" (547 US at

327). Requiring a defendant seeking to admit third-party

culpability evidence to establish that the probative value of

relevant evidence outweighs the appropriate countervailing

factors is neither arbitrary nor disproportionate to the purpose

of the rule. Indeed, in this context, "the countervailing risks

of delay, prejudice and confusion are particularly acute" and

"[i]f those concerns were not weighed against the probative value

of evidence, the fact-finding process would break down under a

mass of speculation and conjecture" (Primo, 96 NY2d at 356-357). 

We review a trial court's determination concerning

admissibility of third-party culpability evidence under an abuse

of discretion standard (see Schulz, 4 NY3d at 529). Here, the

trial court did not abuse its discretion by precluding

defendant's ambivalent offer of proof of third-party culpability. 

Defendant repeatedly declined to accuse Warren of committing the

murder, proffering instead that the proof would show "someone

else could have killed [Katz]" or that "[defendant] is not the

only one who could have been there." Given defendant's theory

for admission -- that others could have had access to Katz's home

or might have had reason to kill her -- the trial court did not

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abuse its discretion by precluding the proffered evidence (see

People v Gamble, 18 NY3d 386, 398-399 [2012] [speculative

assertions that other unidentified individuals had a motive to

harm a victim are insufficient to support admission of thirdparty culpability evidence]).

To be clear, admission of third-party culpability

evidence does not necessarily require a specific accusation that

an identified individual committed the crime. For example, a

proffer of an unknown DNA profile may be sufficient. And we

reject the trial court's assertion that such a specific

accusation "is an essential element of third-party culpability." 

Such a requirement would conflict with the balancing analysis

that we announced in Primo and reaffirm today. Nevertheless,

defense counsel's argument must be assessed based on the proffer

as articulated (see People v Collins, 109 AD3d 482, 482-483 [2d

Dept 2013], lv denied 23 NY3d 1019 [2014] [refusing to address on

appeal the defendant's new theory for admission of evidence]; cf.

People v Reed, 84 NY2d 945, 947 [1994] [refusing to address on

appeal the defendant's new theory for precluding admission of the

People's evidence]). The trial court was within its discretion

in finding that proffer speculative and in determining the

evidence to support it would have caused undue delay, prejudice,

and confusion.

During deliberations, the jury sent a note to the trial

court asking: "If one inflicts a critical wound on a person and

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does not assist the person, does the not assisting satisfy the

question of intent to murder." Upon such a request for

instruction, CPL 310.30 requires the court to "give such

requested information or instruction as the court deems proper." 

The court must respond meaningfully to the request, but it is in

the best position to evaluate the jury's request and has

discretion in framing an appropriate response (see People v

Steinberg, 79 NY2d 673, 684 [1992]; People v Almodovar, 62 NY2d

126, 131-132 [1984]). Here, contrary to defendant's assertion,

the court responded meaningfully to the jury's question.

The trial court did not abuse its discretion by

prohibiting Warren's sister from testifying or precluding

evidence that a witness lied to parole office employees because

such extrinsic evidence could not be used to impeach the

witnesses on these collateral matters (see People v Knight, 80

NY2d 845, 847 [1992]). Finally, defendant's claim that the

sentencing court improperly considered uncharged conduct when

imposing sentence is unpreserved for review.

Accordingly, the Appellate Division order should be

affirmed.

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Order affirmed. Opinion by Judge Garcia. Judges Pigott, Rivera,

Abdus-Salaam, Stein and Fahey concur. Chief Judge DiFiore took

no part.

Decided April 5, 2016

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