This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 19 

The People &c.,

 Respondent,

 v.

Richard M. Leonard,

 Appellant.

(Appeal No. 1)

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No. 20 

The People &c.,

 Respondent,

 v.

Richard M. Leonard, 

 Appellant.

(Appeal No. 2)

Case No. 19 and Case No. 20:

Brian Shiffrin, for appellant.

Robert J. Shoemaker, for respondent.

ABDUS-SALAAM, J.:

Defendant was convicted of sexual abuse in the first

degree (Penal Law § 130.65 [2]) and unlawfully dealing with a

child in the first degree (Penal Law § 260.20) for serving

alcohol to an underage relative (hereinafter the victim) and then

sexually abusing her while she was intoxicated. Defendant

appealed, and moved to vacate his conviction pursuant to Criminal

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Procedure Law § 440.10. On defendant's direct appeal, we hold

that the trial court erred in permitting the People to introduce

testimony from the victim about a prior incident in which

defendant allegedly sexually assaulted her in a similar manner,

because the evidence was not permissible for the People's

proffered Molineux purposes and, to the extent it was probative

for a limited purpose, the prejudicial nature of that evidence

far outweighed any probative value. Therefore, we reverse the

Appellate Division order affirming the judgment and remit for a

new trial. However, we affirm the Appellate Division's denial of

defendant's Criminal Procedure Law § 440.10 motion. We therefore

affirm that Appellate Division order.

I. 

In October 2007, defendant was assaulted by the

victim's boyfriend. Following his arrest, the boyfriend was

interviewed by a police officer, to whom he explained that he

assaulted defendant because he suspected that defendant had acted

in a sexually inappropriate manner with the victim. During

questioning by the police officer, the victim stated that her

boyfriend attacked defendant because he thought that she had been

raped by defendant earlier that day, "but it was not true." The

officer created an Incident Report in which he stated that the

boyfriend said he had assaulted defendant because while he was at

defendant's home earlier that day, he "believed that [defendant]

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was doing something inappropriate to [the victim]," but he

"didn't see anything specific." In the boyfriend's Voluntary

Statement, he explained that while he and the victim were at

defendant's home, he was in the basement playing video games,

while the victim, who was intoxicated, lay passed out on an

upstairs couch. The boyfriend said that he saw defendant

standing over the victim, and suspected that he was doing

something inappropriate to her. After the boyfriend and the

victim left defendant's house, the boyfriend stated that the

victim informed him that defendant had raped her on a prior

occasion. 

Defendant was indicted for sexual abuse in the first

degree and unlawfully dealing with a child in the first degree

for giving the victim alcohol. Prior to trial the prosecutor

filed a "Molineux Proffer" seeking to elicit testimony regarding

an alleged 2005 sexual abuse incident involving the same victim. 

According to the victim, she fell asleep on a couch in her home

where defendant had been living after drinking alcohol provided

to her by defendant. When she woke up, her pants were down and

defendant's fingers were inside her vagina. The prosecutor

argued that this evidence was relevant to show intent, absence of

mistake, background, and common scheme or plan. Over defendant's

objection, the court ruled that the People could elicit testimony

regarding the 2005 incident in their direct case. The court did

not specify for which Molineux purpose the evidence was

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admissible or if it weighed the probative value of the evidence

against any potential prejudice to defendant. 

During trial, the boyfriend testified that in October

2007, he and the victim went to defendant's home where they all

drank alcoholic beverages. Some time later, the victim passed

out in the bathroom and he and defendant carried her upstairs and

placed her on a couch. The boyfriend and defendant then went

downstairs to play video games in the basement. At some point,

defendant went upstairs while the boyfriend remained in the

basement. The boyfriend testified that, from where he sat, he

could see defendant kneeling between the coffee table and couch

on which the victim was passed out. He questioned defendant, who

responded that he was checking on the victim because he thought

she was going to vomit. A few minutes later, he once again

observed defendant kneeling down in front of the victim, touching

her, after which, he ran upstairs where he saw defendant touching

the victim's vagina. He shook the victim awake and they left.

The victim also testified at trial. Although she could

not remember the assault, she recalled her boyfriend waking her

up and noticed that her knees were open and her pants and

underwear were below her knees. Pursuant to the court's Molineux

ruling, the victim testified that in 2005, she was drinking

alcohol provided by defendant and, when she later woke up on a

couch, defendant was touching her vagina. She admitted that,

prior to the present case, she never told anyone of this alleged

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sexual assault from 2005.

Defendant testified on his own behalf, denying that he

supplied the victim and her boyfriend with alcohol. He explained

that after the victim passed out in the bathroom, he and her

boyfriend put her on the couch, and the victim started vomiting

in the area between the sofa and coffee table. Defendant

testified that he got a bowl in case she got sick again, which

she did. The victim and her boyfriend left at about 4:00 a.m. 

Defendant denied inappropriately touching the victim.

The jury convicted defendant of sexual abuse in the

first degree and unlawfully dealing with a child in the first

degree, and he was sentenced to a term of three years and six

months in prison, with seven years of postrelease supervision. 

Defendant moved pro se to set aside his conviction

pursuant to Criminal Procedure Law § 440.10, raising ineffective

assistance of counsel and prosecutorial misconduct claims. 

County Court denied the motion without a hearing, holding that

defendant's claims lacked merit. 

The Appellate Division considered both appeals

together, and affirmed both orders (129 AD3d 1592 [4th Dept

2015]). With respect to the direct appeal, the court rejected

defendant's contention that the trial court erred in admitting

the Molineux evidence, concluding that the evidence of uncharged

crimes was admissible to establish intent and motive, and was

also admissible to provide necessary background information on

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the nature of the relationship between defendant and the victim. 

We disagree with the court's conclusion that the Molineux

evidence was permissible.

II. 

Under our well-established Molineux rule, "evidence of

a defendant's uncharged crimes or prior misconduct is not

admissible if it cannot logically be connected to some specific

material issue in the case, and tends only to demonstrate the

defendant's propensity to commit the crime charged" (People v

Cass, 18 NY3d 553, 559 [2012]). Evidence of such crimes or prior

bad acts may be permissible for certain limited reasons; however,

the court may admit such evidence only after making the

discretionary determination that the probative value of the

evidence outweighs the potential for prejudice to the defendant

(see People v Alvino, 71 NY2d 233, 241 [1987]; People v Molineux,

168 NY 264 [1901]). In People v Molineux, we identified a

non-exhaustive list of five exceptions or purposes, for which

uncharged crimes might be relevant, to show: (1) intent, (2)

motive, (3) knowledge, (4) common scheme or plan, or (5) identity

of the defendant. Additionally, in People v Dorm, we explained

that prior uncharged crimes may also be used to "provide[]

necessary background information on the nature of the

relationship and place[] the charged conduct in context" (12 NY3d

16, 19 [2009]). "[E]ven if [the evidence is] technically relevant

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for one of these or some other legitimate purpose, Molineux

evidence will not be admitted if it 'is actually of slight value

when compared to the possible prejudice to the accused'" (People

v Arafet, 13 NY3d 460, 465 [2009]). As stated, evidence may not

be admitted to show that a defendant has a propensity to commit a

certain type of crime, as such evidence has no legitimate basis

for admission (see Alvino, 71 NY2d at 253). 

The victim's testimony here that defendant had

previously sexually assaulted her by getting her drunk is

propensity evidence, tending to show that defendant committed the

charged crime because he had done it before. Contrary to the

People's argument and the lower courts' decisions, this evidence

was not necessary background information. Background evidence is

admissible to show (1) the nature of the relationship and (2) to

provide context for the charged conduct (see Dorm, 12 NY3d at

19). This exception is generally applicable where there is some

need to explain the victim's conduct or actions in relation to

defendant by illuminating the nature of their relationship, or

some need to flesh out the narrative so that there are no gaps in

the storyline provided to the jury (see People v Frankline, 27

NY3d 1113, 1115 [2016]; People v Leeson, 12 NY3d 823, 827

[2009]), or where the relationship itself provides a motive for

the defendant's criminal conduct (see Frankline, 27 NY3d at 1115;

People v Gamble, 18 NY3d 386, 398 [2012]; People v Till, 87 NY2d

835, 837 [1995]). Here, however, the victim's testimony as to

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the alleged prior sexual abuse was not necessary to show the

nature of the relationship between her and defendant or to "sort

out ambiguous but material facts" (People v Resek, 3 NY3d 385,

390 [2004]). The victim testified as to her relationship with

defendant, stating that they are relatives who lived, at certain

times, in the same home and that on the night of the indicted

sexual assault, she and her boyfriend went to defendant's home to

spend time together and drink alcohol. The introduction of the

prior alleged assault was not necessary to clarify their

relationship or to establish a narrative of the relevant events.

Further, the evidence of the uncharged crime was not

admissible to show intent. The intent here -- sexual

gratification -- can be inferred from the act. "Evidence of

prior criminal acts to prove intent will often be unnecessary,

and therefore should be precluded even though marginally

relevant, where intent may be easily inferred from the commission

of the act itself" (People v Alvino, 71 NY2d at 242). Such is

the case here, where defendant's alleged action of touching the

victim's vagina was plainly for sexual gratification and not an

"equivocal" act capable of being understood as "innocently or

inadvertently committed" (id. at 242-243). 

To the extent the evidence was admissible to show

defendant's motive in getting the victim drunk, the evidence was

highly prejudicial, as it showed that defendant had allegedly

engaged in the exact same behavior on a prior occasion with the

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same victim -- classic propensity evidence. The prejudicial

nature of the Molineux evidence far outweighed any probative

value that may be attributed to it. Thus, to the extent the

trial court permitted this evidence to show motive, it abused its

discretion. The error in admitting this evidence was not

harmless, as the evidence of defendant's guilt was based

principally on the boyfriend's testimony and was not

overwhelming; additionally, no limiting instruction was provided

regarding the permissible purposes for which the Molineux

evidence could be considered. 

Our reversal of defendant's conviction and remittal for

a new trial renders his ineffective assistance of counsel

arguments in his Criminal Procedure Law § 440.10 motion academic. 

The remainder of his motion addressing his claim that the

prosecutor engaged in misconduct requiring dismissal of the

indictment was properly denied without a hearing. 

IV.

Accordingly, on defendant's direct appeal, the

Appellate Division order should be reversed and a new trial

ordered, and the Appellate Division order affirming the denial of

defendant's Criminal Procedure Law § 440.10 motion should be

affirmed. 

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For Case No. 19: Order reversed and a new trial ordered. 

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges

Rivera, Stein, Fahey, Garcia and Wilson concur.

For Case No. 20: Order affirmed. Opinion by Judge Abdus-Salaam. 

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and

Wilson concur.

Decided March 28, 2017

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