The court finds that the evidence concerning defendant’s prior misconduct with DD had no relevance to any material issue in the case and tended only to demonstrate defendant’s general criminal propensity. Hence, it should have been excluded under People v. Molineux and the subsequent decisions applying the principles set forth in that case.
As held in People v Lewis, People v Ventimiglia, People v Santarelli and People v Allweiss, it is elementary that evidence of a defendant’s prior criminal or immoral conduct is inadmissible if it cannot logically be linked to some specific material issue in the case. Although such evidence has some minimal probative worth because of its tendency to demonstrate the defendant’s bad character and general criminal propensity, it is excluded as a matter of law when it has no additional relevance to a specific issue, because there is a very real danger that the trier of fact will overestimate its significance.
The first level of this inquiry requires the proponent of the evidence, as a threshold matter, to identify some issue, other than mere criminal propensity, to which the evidence is relevant. Once such a showing is made, the court must go on to weigh the evidence’s probative worth against its potential for mischief to determine whether it should ultimately be placed before the fact finder. This weighing process is discretionary, but the threshold problem of identifying a specific issue, other than propensity, to which the evidence pertains poses a question of law as in People v. Alvino.
The DD evidence was highly prejudicial and therefore not “harmless,” despite the fact that eight other boys recounted essentially the same story. The DD evidence was qualitatively different from the testimony of the other boys, in that it was not subject to impeachment under the defense’s “rumor” theory. Because of the relative strength of this evidence, particularly as it was bolstered by the grandmother’s corroborative testimony, there is a serious danger that the jury used it to draw the impermissible inference and to resolve any doubts it might otherwise have had about the other boys’ stories in the People’s favor.
The court also concludes that defendant was improperly denied the right to present his case by the trial court’s ruling foreclosing examination of the two investigating officers about the manner in which the child pornography -witnesses were first questioned.
People v Sorge established that the trial courts have broad discretion to keep the proceedings within manageable limits and to curtail exploration of collateral matters. However, extrinsic proof tending to establish a reason to fabricate is never collateral and may not be excluded on that ground. Further, the trial court’s discretion in this area is circumscribed by the defendant’s constitutional rights to present a defense and confront his accusers.
Both the constitutional and the evidentiary rules were breached when the trial court precluded defense counsel from questioning the police officers in the manner proposed. Defense counsel had a good-faith basis for the proposed line of questioning, and no one challenges the bona fides of his claim, which was based upon statements in the investigators’ reports as held in People v. Gilliam. Although the trial court concluded that the proposed line of questioning was “collateral,” its conclusion is obviously flawed, since the questioning concerned more than the credibility of the People’s witnesses in general and went instead to a possible reason for fabrication by these impressionable witnesses, i.e., the investigators’ suggestive comments.
The fact that defendant had a limited opportunity to explore the matter during his cross-examination of the child-witnesses does not cure the error in the court’s evidentiary ruling. Indeed, the evidentiary error lies precisely in the trial court’s refusal to permit extrinsic proof of a matter that went beyond a mere attack on the witnesses’ general credibility.
The court finds that contrary to the suggestion of the dissent, the information defense counsel sought to elicit from the investigating officers was not duplicative of the admissions he elicited from some of the child-witnesses that they had changed their stories after police questioning. Both the two children who had made such admissions and the other children who had given a detailed story for the first time after police questioning were potentially subject to impeachment on the theory that their stories had been influenced by what they had heard from the investigators. Although defense counsel attempted to explore the possibility of suggestive police comments during his cross-examination of the child-witnesses, his efforts were met with flat denials. These denials might well have been materially impeached if defense counsel had been permitted to question Investigator KR and Officer BB about their comments to these impressionable young boys.
The court finds that there is no theory under which the error can be considered harmless. The issue of the manner in which the police had interviewed all of the young victims and the possibility that there had been a degree of suggestiveness in their approach went to the heart of defendant’s case. The limited questioning which the court permitted concerning the manner in which one of the witnesses, KK, had been interviewed was no substitute for the broader inquiry that was improperly precluded. Further, because defendant was precluded from questioning the police officers about the manner in which the boys had been interviewed, his ability to develop the defense theory was seriously curtailed and the prosecutor was placed in a position to argue on summation that any defense contention concerning the victims’ motive to falsify was purely speculative.
The Ex Post Facto Clause of the United States Constitution does not require that a defendant be tried under the corroboration rules that existed at the time his alleged sex crimes were committed.
Accordingly, the amended versions of Penal Law §§ 130.16 and 260.11 were properly applied at defendant’s trial, and the evidence was legally sufficient to support the jury’s verdicts, notwithstanding that most of the charges were not supported by corroborative proof.
The court nonetheless holds that because the trial court’s erroneous evidentiary rulings were highly prejudicial, the conviction that was based on those verdicts cannot be permitted to stand.