Reasons for Overturning the Conviction

The appellate court’s 4–3 decision centered on the trial judge’s allowance of testimony from women whose allegations were not part of the formal charges against Weinstein. The court determined that this testimony served no material non-propensity purpose and prejudiced the jury, effectively putting Weinstein on trial for his character rather than specific alleged criminal acts. 

This ruling emphasized the importance of adhering to evidentiary rules that protect a defendant’s right to a fair trial, particularly concerning the admissibility of prior bad acts.

The Retrial

Following the overturning of his conviction, Weinstein’s retrial began on April 23, 2025, in Manhattan. The retrial includes charges related to the alleged assaults of Miriam Haley in 2006 and Jessica Mann in 2013, as well as a new charge involving an unidentified woman from 2006.  Prosecutors argue that Weinstein exploited his significant influence in the entertainment industry to manipulate and assault women. 

Weinstein has pleaded not guilty to all charges. The retrial is expected to last up to six weeks and is being closely watched as a significant case within the broader context of the #MeToo movement. 

Despite the overturned New York conviction, Weinstein continues to serve a 16-year sentence from a 2022 rape conviction in California. 

Despite the negative media perception of Mr. Weinstein, he could actually win this retrial. The witnesses will have to testify again and be cross-examined by skilled attorneys who have access to the transcripts from the prior trial. Inconsistencies in their testimony will be pounced upon by the defense. The defense intends to paint these complaining witnesses as opportunists who only claimed to be victims after their Hollywood dreams fizzled. They will be mercilessly asked about their pursuit of relationships with Mr. Weinstein after the alleged rapes, as evidence that they simply wanted something in exchange from him that they never received. Without the Molineux witnesses that prejudiced the jury at the last trial, there is at least a chance that the jury will have some reasonable doubt this time.

Matthew Galluzzo is a former Manhattan sex crimes prosecutor and experienced criminal defense attorney. He has earned acquittals at trial in sex crimes cases in state and federal courts across New York, and he has frequently commented on the Weinstein case in television and print media. 

The trial judge will now be responsible for sentencing Mr. Majors. The defense lawyers may ask that the trial court overturn the jury’s verdict, but those sorts of motions are rarely granted. Instead, the defense lawyers will need to concern themselves for now with persuading the judge to impose a non-jail sentence. The court could sentence Mr. Majors for as much as one year in jail, which he would have to serve at the notorious prison on Rikers Island. However, the court could instead impose a sentence of up to three years’ probation (which would restrict his ability to travel, even for work), or other conditions like anger management or counseling. The defense attorneys will likely propose some sort of counseling program with community service and beg the court to not sentence him to probation so that he can travel to filming locations without interruption or complication. Obviously, this conviction may ruin his Hollywood career, as certain projects have already been put on hold or suspended as producers awaited the outcome of this trial.

If one had to predict, one would not expect the court to impose a jail sentence in a reckless assault case. First, Mr. Majors has no criminal history, which tends to militate strongly against jail sentences in relatively minor cases. Furthermore, the injuries sustained by Mr. Jabbari appeared to be relatively minor on the spectrum of assault cases; certainly, many assault trials involve much more serious injuries resulting in hospitalizations and/or permanent disabilities. Mr. Majors is a prominent person and the court might want to make an example of him, but he is also potentially able to do something positive for the community, as well. So, I would predict some sort of combination of anger management and community service, along with an order of protection in favor of Ms. Jabbari. The big question really is whether Mr. Majors will be sentenced to a period of probation, which would be a huge hindrance for his career.

The verdict is somewhat surprising here. There was some evidence that tended to suggest that Mr. Majors was a victim of Ms. Jabbari’s aggression. Indeed, he filed a report against Mr. Jabbari that did originally result in her arrest, as well. Moreover, an Uber driver who shuttled the two of them together about the time of the assault offered the opinion that Ms. Jabbari was initiating the conflict. It’s always difficult to second-guess strategic decisions made by attorneys in the trial, but Mr. Majors’ decision not to take the stand almost certainly cost him. Courts also instruct juries not to infer guilt from a defendant’s decision not to testify, but the jury had to perplexed by the fact that a charismatic stage and film actor would sit silently at the defense table and let his attorney make the case that he was a victim, without saying it himself.

Mr. Majors will be able to pursue an appeal if he so chooses, but appeals courts are loath to overturn verdicts based upon the facts. Typically, questions of guilt or innocence are entrusted to the jury, as are assessments of witness credibility. Those decisions usually remain undisturbed. If the defense can make the argument that the trial court made an improper legal ruling that had a material effect on the outcome, then they may have a chance on appeal. But there’s nothing in the record here that stands out as particularly controversial, in terms of legal decisions made by the court during the trial. So, it is more likely than not that this judgment will be affirmed on appeal.

The author of this article, Matthew Galluzzo, is a criminal defense attorney and former Manhattan prosecutor. As a prosecutor, he was a supervisor in the domestic violence bureau of the New York County District Attorney’s Office, the same office that prosecuted Jonathan Majors in this case. He was worked as an appellate prosecutor responding to criminal appeals, and later prosecuted murders and sex crimes cases. In 2023, in recognition of his service to the French government and his successful representation of dozens of French citizens, he was knighted by the nation of France and is now a Chevalier in the French Order of Merit.

Matthew Galluzzo is a former sex crimes prosecutor who now represents both plaintiffs and defendants in civil sex abuse cases. He also regularly defends individuals accused of white collar crimes and fraud in federal court.

The link to the interview is available here.

As a preliminary matter, it seems reasonably likely that a trial will in fact happen. Having indicted a former president on numerous felony counts, it seems unlikely that they will make Mr. Trump a plea bargain offer to anything less than a felony. To anyone who knows Mr. Trump at all, it seems inconceivable that he would admit to any guilt of a crime, especially with a looming presidential election. Thus, in the absence of a plea bargain (which resolves most cases), a trial should happen.

That being said, it is quite likely that the trial might not happen before the presidential election next year. One can only imagine what would happen to the indictment if Mr. Trump were elected president prior to the trial taking place.

However, in the event that the trial actually takes place on Manhattan soil, the selection of the jury will undoubtedly be one of the most difficult aspects for Trump’s trial team.

To reach a verdict in a felony case, a jury of twelve must be unanimous in its decision. To convict, the jury must agree that a defendant is guilty beyond a reasonable doubt. In the event that one or more jurors disagrees with the others, then the judge must declare a mistrial (or “hung jury”) and the case has to be retried, as it is neither a conviction nor an acquittal.

From the defense perspective, a hung jury represents a victory. Certainly, Mr. Trump would tout it as such on social media and in his political campaign. Also, the delay in scheduling the re-trial would likely propel Mr. Trump past the election date. So, the defense team will likely employ a common defense strategy of searching for a rogue or contrarian juror who will disagree with the other jurors just to disagree, or to prove a point, or to seek fame and fortune on the speaking circuit for himself/herself. In short, the prosecution needs a unified team of twelve, but the defense just needs to persuade one juror. Frankly, it might be impossible for the defense to find twelve jurors in Manhattan who want to acquit Trump, so they will likely be aiming for a hung jury. That might mean finding one juror who hopes to make a name for himself/herself by making a controversial decision of national importance in the hopes of attracting the spotlight.

Potential jurors will be drawn from the island of Manhattan – they will all be residents of New York County. Jury service is a duty of citizenship and cannot be refused. People are selected to receive jury summonses randomly through the mail. Normally, hundreds of people are called down to 100 Centre Street every week and told to wait in a jury waiting room until (or if) they are needed by a judge starting a trial. There is no requirement that people have a certain level of education or familiarity with the law. Generally, it is only required that jurors be able to speak and read English and be healthy enough to sit through the trial.

In this case, the courts might elect to bring more people than usual down to 100 Centre Street for the date of Mr. Trump’s trial. Then, as Mr. Trump’s trial is set to begin, about 100-200 of them (maybe) will be brought into the courtroom and made to wait in the audience. Certain general instructions about jury service will be given to them by the judge, and then they will be made to swear under oath that their answers to questions will be the truth.

From there, about 14-20 of the potential jurors (panelists) will be randomly picked to sit in the front of the courtroom and endure questions from the attorneys on the case (both prosecution and defense). Usually, a wireless microphone is passed from panelist to panelist so that they can answer certain pedigree questions about themselves: their name, the neighborhood in which they live, their profession, their educational background, who they live with and who is in their family, whether they have ever been jurors before, whether they have ever been involved in litigation before, whether they have any friends or family members involved in the criminal justice process, and whether they have any issues that make them unable to be open-minded as jurors. Jurors answer these questions in open court before the attorneys and judge, though sometimes if issues are private or personal, they can be answered outside of the defendant’s presence.

Both sides – the prosecution and the defense – would be afforded ten peremptory challenges in total, meaning that they can remove possible jurors from consideration for the trial for any reason whatsoever without explanation or justification (though it is not supposed to be done for certain impermissible reasons, like race or gender). However, an unlimited number of panelists can be successfully challenged “for cause,” meaning that the panelist says something during voir dire (another term for jury selection) that indicates that they cannot be fair as a juror. CPL § 270.25(2)(c).

In a case like this, the court will almost certainly ask questions about pre-trial publicity and whether the jurors have formulated any opinions about this case. In high-profile criminal cases, panelists are not automatically excluded from jury service just because they have heard about the case, or because they may have an opinion about the defendant or the case. The threshold question is whether the juror can put aside his/her personal feelings about a person/case and whether he/she can evaluate the evidence with an open mind (and without considering any pretrial publicity or news reports he/she may have seen).

Any potential panelists who say they cannot be fair will be excluded from service. Of course, some of those people will be lying, as will some of the people who claim they are capable of being fair. But the judge cannot fail to exclude someone who does not give an “unequivocal assurance of impartiality” without risking a serious chance of reversal on appeal. This will be a very dicey area for the trial judge to oversee, as many potential jurors are likely to hesitate when answering this question about impartiality. On appeal, a defense attorney can even win a reversal of a conviction where the attorney had to use a peremptory challenge to exclude a juror who should have been dismissed for cause. Put another way, the problematic juror does not even have to have been on the jury for the defense to potentially win an appellate argument that an unfair juror was not excluded for cause.

As a practical matter, Donald Trump and his attorneys face an incredibly uphill battle in picking a jury in Manhattan. He only received 12% of the vote in Manhattan in the last presidential election, The remaining 88 percent or so of the residents of the island has a very unfavorable opinion of the former president. It is no stretch to say that there are likely many people in Manhattan who would want to get onto the jury(and say whatever was necessary during voir dire) just so that they could convict him at trial by any means necessary. Donald Trump is entitled to a fair trial just as anyone else, but he isn’t entitled to be tried by people who like him, either. After all, that might be impossible to arrange in Manhattan (or anywhere else near New York City).

Trump’s legal team might think it smarter to waive a jury and have the judge decide the case on the facts. This would be an interesting strategy. On the one hand, it would hopefully place the decision into the hands of a more objective jurist. On the other hand, should he be convicted, Trump could blame a single individual who he has already accused of being biased against him. Such a scenario might play well into his broader political objectives. Given the unfavorable landscape in Manhattan, the possibility of a “bench trial” by judge (instead of jury) seems significant here.

Matthew Galluzzo is a criminal defense attorney and former Manhattan Assistant D.A. He has appeared as a legal commentator on TV and in newspapers across the world, including CNN, MSNBC, Fox, NPR, The Economist, the New York Times, the Wall Street Journal, the BBC, and others.

The question on everyone’s mind has been whether Ms. Maxwell will finally disclose the names of the other purportedly rich and powerful celebrities who engaged in illicit conduct with minors and Jeffrey Epstein. Ms. Maxwell has steadfastly refused to do that, even after Epstein’s death (to the surprise of some). Ms. Maxwell initially denied being knowingly involved in any criminal conduct, and her statement at sentencing was hardly an apology, either.

Ms. Maxwell may also have a legitimate ground for an appeal to the Second Circuit Court of Appeals. After the verdict, a juror disclosed that they had not told the Court during jury selection about having been a victim of a sexual assault. Judge Nathan (the trial judge) denied a motion for a new trial on that basis, and Maxwell will almost certainly pursue that argument on appeal.

The question now is whether Ms. Maxwell will consider disclosing the names of the Epstein “clients” pursuant to Federal Rule 35. That rule makes it possible for a convicted defendant to have their sentence reduced for providing “substantial assistance” to law enforcement following the imposition of sentence:

(b) Reducing a Sentence for Substantial Assistance.

(1) In General. Upon the government’s motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion. Upon the government’s motion made more than one year after sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

As you can see, Ms. Maxwell will need to disclose this information within a year, or it will be too late for her to benefit. She theoretically might try to appeal her sentence before making that decision to cooperate, but her appeal might take longer than a year to resolve. Clearly, though, were she to divulge important information about “the clients” to federal prosecutors, she might be able to reduce her sentence such that she does not risk dying in prison.

Matthew Galluzzo is a New York City federal criminal defense attorney and former sex crimes prosecutor in Manhattan.

After a federal conviction – by guilty plea or by jury verdict – the defendant is interviewed by a specialized officer from the U.S. Department of Probation. These officers typically have backgrounds in social work, and it is their responsibility to prepare a biography – or presentence report – for the court. The judge uses this presentence report at sentencing to understand the defendant’s life, background, and circumstances. (The Bureau of Prisons also uses this report in determining the defendant’s prison designation.) The preparation of a report can easily take two months or more, as the interview has to be scheduled, a draft report prepared, edits and objections made by both the defense and the prosecution, and a final draft with a sentencing recommendation submitted to the sentencing court.

Following the preparation of the presentence report, both the prosecution and defense prepare sentencing memoranda for the judge. Both sides make arguments about the proper application of the U.S. Sentencing Guidelines and the sentencing factors pursuant to 18 U.S.C. § 3553(a). Defense lawyers usually submit character letters from friends and family of the defendant, and sometimes the defendant also submits his/her own letter of remorse. Eventually, the sentencing court then holds a sentencing hearing at which both sides make oral arguments about the sentence and the court pronounces its decision. That sentencing hearing could be anywhere from 4 to 6 months after the conviction, though it could take even longer.

Every federal offense has a maximum and a minimum possible prison penalty, but it is the Sentencing Guidelines that help courts and defendants understand what Congress considers reasonable with more precision. The U.S. Sentencing Commission promulgates Sentencing Guidelines for each offense that includes factors for the courts to consider for each type of offense. For example, the Guidelines instruct the courts to consider a defendant’s role in the offense, how much money was stolen, how many drugs were trafficked, whether firearms were used or not in the offense, and whether any minors were injured.

It is thus extremely difficult to estimate Ms. Maxwell’s sentencing range under the U.S. Sentencing Guidelines without knowing all the details of the case and her background, but she is clearly facing a significant sentence. When a person is convicted of sex trafficking or enticement of multiple individuals, the Guidelines instruct that a person should receive consecutive sentences for each victim. Here, there are three victims in the case with corresponding convictions, so the penalties for each offense will “stack,” rather than be imposed concurrently. See U.S.S.G. 2G1.1(d)(1). Assuming Ms. Maxwell has no prior criminal record, she is probably looking at Guidelines ranges of around 97-121 months per victim, imposed consecutively. U.S.S.G. 2A3.1(a)(2). The court and parties will refer to the Sentencing Table to calculate the Guidelines range for each offense. See Table. There could be other aggravating factors or reasons for departures from these Guidelines calculations, however, so this is hardly a definitive calculation. Regardless, a very rough and preliminary estimate has her realistically facing thirty years under the Guidelines, or more. Ms. Maxwell is sixty years old.

Following the sentencing, Ms. Maxwell will be able to pursue a direct appeal to the federal appeals court (in this case, the Second Circuit Court of Appeals). She can make legal arguments about alleged mistakes by the trial court in its rulings and/or arguments that the sentence was excessive. Prior to sentencing, Ms. Maxwell’s lawyers could also pursue various appellate arguments with the trial judge, Judge Nathan, though those probably have zero chance of success and would probably only serve to delay the sentencing. At first glance, there does not appear to be many arguments displaying any probability of success.

A defendant of course does not have to testify at trial, as they are entitled to a presumption of innocence and the burden of proof is on the prosecution. Moreover, a defendant’s decision not to testify cannot be held against them, either. That being said… sometimes defendants simply cannot expect to win without testifying. Elizabeth Holmes, for example, elected to testify that she is not criminally responsible for the alleged fraud at Theranos because she was controlled and abused by her boyfriend, who also managed that doomed corporation. Though she may ultimately be convicted, Ms. Holmes almost certainly made the jury’s decision more difficult by testifying. It was somewhat surprising to see Ms. Maxwell decline to testify here, because she frankly had no chance of winning with the strategy she employed. Nobody wins by sitting silent while four complainants point the finger at you with similar stories of abuse. It’s just basically impossible in this #MeToo era. That’s how Cosby and Weinstein lost at trial, and how Cuba Gooding Jr. and Andrew Cuomo will likely be convicted someday, too.

Despite the defiant post-verdict language from her lawyers, Ms. Maxwell likely knew that she was going to lose at trial. Perhaps she chose not to testify because she hopes to one day sell her story to newspapers. After all, you cannot sell what you give away for free on the witness stand. It’s also likely that she did not testify so that she could be cooperating witness someday. This is where the matter becomes truly interesting going forward.

Though most government cooperators choose to “snitch” before trial, it is possible to become a government cooperator after a guilty plea or conviction at trial. Virtually every government cooperator agrees to cooperate in exchange for a lesser criminal penalty, or for a shorter prison sentence. To be a cooperator, though, a witness cannot normally have testified under oath that they had nothing to do with the criminal conspiracy at issue. After all, a government cooperator is typically expected to testify under oath against his or her co-conspirators, and the government cannot elicit testimony from a witness that contradicts prior sworn testimony. Interestingly, Ms. Maxwell is actually indicted – and remains to be tried – for making allegedly false statements about this matter under oath in a parallel civil proceeding. Those statements were relatively short and brief, however, so the government may be willing to overlook some minor prior perjury on her part, in exchange for truly juicy information. If Ms. Maxwell had testified under oath, though, she would have spent the better part of three days denyingher involvement on the stand under withering cross-examination. After that, she would have been useless to the government as a witness against other unnamed co-conspirators because she could not possibly testify against her co-conspirators at a future prosecution of them. She would have destroyed her credibility as a government witness by that point.

So, it is quite possible that Ms. Maxwell and her lawyers deliberately withheld her testimony at trial so that she could still possibly cooperate with the government after a trial conviction. There have been more than a few rumors that President Trump, President Clinton, and Prince Andrew may have been involved in Jeffrey Epstein’s illegal abuse of minors. Given Mr. Epstein’s suspicious suicide at MCC New York, many people have been clamoring to know whether powerful people have been trying to hide the truth about Mr. Epstein’s systematic abuse of minors. Surely, the government would like to know whether Ms. Maxwell can confirm those rumors or provide any documentary proof as to their involvement. Perhaps Ms. Maxwell did not want to be perceived as a snitch or rat by participating with the government voluntarily pre-conviction. But now that she has been convicted at trial, she may acknowledge the futility of her continued resistance and offer the government her assistance in pursuing other prominent people. Maybe she is determined to be loyal to the memory of her dead friend, Jeffrey Epstein, but it would be a bit surprising if she would be willing to die in prison for him at this point.

The author of this article, Matthew Galluzzo, is a New York City criminal defense attorney specializing in federal criminal law. He is also a former Manhattan sex crimes prosecutor. His thoughts and opinions have been published many times in the New York Times and the Wall Street Journal, among other publications. He is also a regular television commentator for Radio Canada.

Specifically, Cuomo will be charged with one count of Forcible Touching, in violation of Penal Law Section 130.52.* That code makes it a class A misdemeanor to intentionally, and for no legitimate purpose:

1. forcibly touch the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor’s sexual desire; or

2. subject another person to sexual contact for the purpose of gratifying the actor’s sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car operated by any transit agency, authority or company, public or private, whose operation is authorized by New York state or any of its political subdivisions.

For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

The crime carries up to one year in jail as a maximum punishment, though jail is not mandatory. A person convicted of this crime can also be sentenced to community service, a conditional discharge, or probation, among other things. The first conviction for this crime does not trigger sex offender registration, but the second does. That fact may prove important for Cuomo as there are other complainants and possible criminal charges potentially awaiting him in the future. Should he be convicted of this charge, and then convicted of another similar charge in the future, then he would become a registered sex offender.

It is difficult to predict whether Cuomo would prevail in this case at trial. Obviously, he is a well known political figure and he has been the subject of tremendous publicity concerning these allegations, so it will be difficult to find an unbiased jury in New York. Also, the other interesting variable for trial will be whether other complainants who have made accusations against Mr. Cuomo will be allowed to testify in this matter regarding the groping at the governor’s mansion. This issue of Molineux witnesses, as they are sometimes called, in sexual misconduct cases, is a subject of tremendous disagreement amongst lawyers and judges. Prosecutors recognize that these witnesses can be extremely powerful (see, e.g. the cases of Harvey Weinstein and Bill Cosby, in which the key to conviction was the fact that multiple witnesses testified about similar conduct by the defendants). Defense attorneys see this sort of “gang tackling” with multiple cases and complaints being presented at once as being violative of due process and constitutional protections. Regardless of where you fall on that issue, there is no doubt that Cuomo’s chances will almost certainly hinge on whether he is permitted to simply defend against one complainant, or whether the jury will hear from several of his alleged victims at once.

Matthew Galluzzo is a former prosecutor from the Manhattan Sex Crimes Unit. As a defense attorney, he has won stunning victories in groping cases in both state and federal court.

*Cuomo will likely also be charged with Sexual Abuse in the Third Degree and other related misdemeanors.

A link to the TV segment and interview is available here:

DA: No prison for Peter Liang in manslaughter of Akai Gurley

People v. Western Express International Inc., No. 156

New York State Court of Appeals

No. 156

New York Law Journal

10-19-2012
Cite as: People v. Western Express International Inc., No. 156, NYLJ 1202575459447, at *1 (Ct. of App., Decided October 18, 2012)

Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents and votes to affirm in an opinion.

Decided October 18, 2012

Jan Hoth, for appellant Latta.

Submitted by Marianne Karas, for appellant Vassilenko.

Allen Fallek, for appellant Roach.

Matthew J. Galluzzo, for appellant Perez.

David M. Cohn, for respondent.

*1 Jonathan Lippman, Chief Judge:

Appellants have been indicted for enterprise corruption (Penal Law §460.20 [1] [a]), a class B felony, based in essential part on their commission of numerous predicate offenses.¹ There was proof before the grand jury that three of them-Douglas Latta, Lyndon Roach and Angela Perez –

*2 repeatedly purchased stolen credit card data which they then used for fraudulent purposes, and that the remaining appellant, Vadim Vassilenko, through the company he controlled, defendant Western Express International, Inc. (Western Express), facilitated transactions by which the purloined credit card data was transferred.

Appellants’ conduct, the People claim, was part of a larger enterprise to traffic in stolen credit card information. To make out the corrupt enterprise, the People adduced before the grand jury proof that Eastern European vendors of stolen credit card data engaged in internet transactions with buyers in New York. There was also proof that, in consummating these transactions, buyers and sellers sometimes availed themselves of services offered by Western Express through its publicly accessible internet web sites. While Western Express’s menu of services – i.e., check cashing, mail receiving, issuing money orders, digital currency exchange, and Russian/English translation – was superficially unremarkable, the services themselves being legal and admitting of legitimate utility in the conduct of international transactions, there was evidence that some Western Express customers, among them defendants Latta, Roach and Perez, used the company’s services for “carding” purposes, i.e., to traffic in stolen credit card information.

The People, in presenting the matter to the grand jury, dwelt principally on the carders’ use of Western Express’s digital currency exchange service. Western Express, having

*3 purchased large sums of the unregulated internet currencies EGold and Webmoney, was an authorized vendor of those forms of tender. For a commission of between two and five percent, the company would transfer into a customer internet account held in an assumed name digital currency purchased from it by the customer with US dollars. The digital currency could then be, and on occasion was, transferred to pay for stolen credit card information, after which the vendor would sell the digital currency received in payment back to Western Express for its value in another digital currency or US Dollars, with Western Express taking an additional commission. This transactional pattern recommended itself for money laundering purposes by reason of the circumstance that E-currency was not government regulated and that international transactions using it went largely unscrutinized.

There was evidence that Western Express was not a neutral observer of this use of its services; its employees offered advice on how to structure transactions to avoid detection and defendant Vassilenko, the company’s president, recognizing that a significant portion of Western Express’s business was from “carding” transactions,² actively sought the patronage of carders. Carder business was encouraged by postings on the Western Express web sites and there was proof that Vassilenko attempted (evidently unsuccessfully) to advertise Western Express’s services on Carder Planet, a members-only web site devoted exclusively to facilitating

*4 illegal carding activities.

Supreme Court granted appellants’ respective motions to dismiss the subject indictment’s enterprise corruption count upon the ground that the proof before the grand jury, even when viewed most favorably to the People, did not make out the existence of a “criminal enterprise.” As is here relevant, guilt of enterprise corruption under New York’s Organized Crime Control Act (OCCA) (Penal Law §460.00 et seq.) requires proof that the accused “when, having knowledge of the existence of a criminal enterprise and the nature of its activities, and being employed by or associated with such enterprise … intentionally conducts or participates in the affairs of [the] enterprise by participating in a pattern of criminal activity” (Penal Law §460.20 [1] [a]). For OCCA purposes a “criminal enterprise” is “a group of persons sharing a common purpose of engaging in criminal conduct, associated in an ascertainable structure distinct from a pattern of criminal activity, and with a continuity of existence, structure and criminal purpose beyond the scope of individual criminal incidents” (Penal Law §460.10 [3]). In dismissing the enterprise corruption count, Supreme Court focused upon the absence of proof of an “ascertainable structure distinct from a pattern of criminal activity”:

“Here, the People have failed to even articulate-much less adduce evidence proving-any system of authority or hierarchy in which the defendants participated … [W]hat the People allege are a series of arms-length business transactions-admittedly extensive and, if the People’s allegations are true, illegal-conducted by a variety of organizations and individuals, each operating independently

*5 and with no overarching structure or system of authority. In essence, the People have described an illegal industry rather than a corrupt enterprise, the criminal parallel of a typical legitimate industry consisting of producers, wholesalers, distributors, retail outlets, and credit suppliers, each of [whom] has a unique but independent role in the industry.”

In reversing and reinstating the enterprise corruption count (85 AD3d 1 [1st Dept 2011]), the Appellate Division, while acknowledging that there was no evidence of a traditionally structured, i.e., hierarchical, entity, theorized that Vassilenko had used Western Express to create a structured enterprise the purpose of which was to “actively encourage more and larger transactions by its participants on an ongoing basis” (id. at 14). The evidence, said the Court, permitted the inference that defendants knowingly played roles in the enterprise even though, for the most part, they had no personal interaction (id.). Two Justices dissented, expressing the view that the requisite “ascertainable structure” to the alleged enterprise had not been demonstrated, even to the bare bones extent necessary to sustain the enterprise corruption count to trial. The dissenters found compelling the absence of “evidence of any collective decision-making or coor dination with respect to the purported enterprise’s activities or of any overarching structure of authority or hierarchy in which defendants participated” (id. at 19). One of the dissenting Justices granted appellants’ separate applications for permission to appeal to this Court. We now reverse and reinstate the orders of Supreme Court dismissing the enterprise corruption count as

*6 against appellants.

New York’s OCCA was enacted in 1986 to afford state prosecutors a means of exacting heightened penalties for criminal activity referable to or generative of structured criminal enterprises (see Penal Law §460.00). Those enterprises were understood to present a distinct evil by reason of their unique capacity to plan and carry out sophisticated crimes on an ongoing basis while insulating their leadership from detection and prosecution (see id.; People v. Besser, 96 NY2d 136, 142 [2001]). The Federal Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC §1961 et seq.) had, of course, for some time enabled federal prosecutors to prosecute enterprise corruption as such, but until the enactment of the OCCA there was no New York State analogue.

The common challenge posed both federal and state legislators in penalizing enterprise corruption as a separate crime was to delineate the circumstances under which conduct already fitting under a criminal definition would additionally be subject to prosecution and more serious penalization for its connection to a criminal organization. To justify the superadded penalties for participation in a corrupt enterprise, and concomitantly to avoid sweeping relatively minor offenders into complex multi-defendant, multi-count prosecutions entailing a risk of draconian punishment, it was necessary to distinguish between what on the one hand were merely patterns of criminal conduct and what on the other were patterns of such conduct demonstrably designed to achieve the purposes and promote the

*7 interests of organized, structurally distinct criminal entities. Accordingly, both RICO and the OCCA require the prosecution to prove, in addition to a pattern of criminal activity, the existence of a separate criminal enterprise to which that pattern of activity is beneficially connected (see United States v. Turkette, 452 US 576, 583 [1981]; Penal Law §§460.20 [1]; 460.10 [3]). While RICO does not explicitly require proof of the enterprise’s structural integrity, it is settled that a qualifying enterprise must have structure (Boyle v. United States, 556 US 938, 940-941 [2009]). And, as noted, the OCCA, which is assertedly of more narrow application than RICO (Penal Law §460.00),³ makes the requirement of “an ascertainable structure distinct from a pattern of criminal activity” express in its definition of “criminal enterprise” (Penal Law §460.10 [3]). Both statutes demand or have been understood to demand proof of an association possessing a continuity of existence, criminal purpose, and structure – which is to say, of constancy and capacity exceeding the individual crimes committed under the association’s auspices or for its purposes (id.; Boyle, 556 US at 946).

There is no question that the People presented as to each appellant considerable evidence of a pattern of illegal activity. The issue to be decided is whether they also presented evidence from which a petit jury could reasonably

*8 infer (see People v. Bello, 92 NY2d 523, 525 [1998]) that that activity bore the requisite relation to a distinct criminal enterprise-a “group of persons” seeking a “common purpose” and associated in an ascertainably structured entity. The People and the Appellate Division majority proposed a structure composed of buyers and sellers of stolen credit card information arrayed around Western Express’s hub-like web sites, drawn there by reason of the sites’ menu of facilitative services. As Supreme Court perceptively observed, however, this does no more than describe a prevalent pattern evidently organic to the “carding” market; it is how that business often happens to be configured given the needs and interests of the individual market participants. It is, however, not indicative of a distinct, structured criminal enterprise. There is no hint that any of the market participants acted except for and according to their own particular interests,⁴ much less that their actions within the illicit market were somehow connected to the workings of a structured, purposeful criminal organization.

The People urge that a criminal enterprise need not be hierarchical to be structured and that structure may be inferred from patterns of criminal conduct. While both of these propositions may be true in theory, it remains that under the OCCA a “common purpose” is required and the structure of a criminal enterprise must be “ascertainable.” Here these conditions are not met. The presented evidence was indicative

*9 of no more than the manner in which international transactions in stolen credit card data were commonly conducted, with or without the use of Western Express’s services⁵; it did not support the further inference of a distinct, beneficially related criminal enterprise.

It is true that in Boyle the RICO requirement of enterprise structure was deemed satisfied simply by proof of the underlying pattern of criminal activity and the inference of structure that that proof would bear (see 556 US at 947-948). The OCCA, unlike RICO, however, specifically demands that the structure be distinct from the predicate illicit pattern, and not surprisingly there are no New York cases in which the requisite structure has been inferred simply from an underlying pattern. Moreover, Boyle involved a ring of thieves whose relatively constant membership met from time to time to plan and execute bank heists, the proceeds of which they shared (see id. at 941). There was, then, some evidence from which a continuing cooperative criminal enterprise possessed of a common purpose and some, albeit loose, structure could be inferred. Here, although there was evidence of many arms’ length transactions, there was no proof of concerted activity from which a petit jury might reasonably have gathered that the appellants were knowing participants in the affairs of a “criminal enterprise” within the meaning of Penal Law §460.10 (3).

Doubtless, the internet may be used to facilitate crime, and we do not exclude the possibility that a web site

*10 singularly preoccupied with processing a screened clientele’s illicit transactions could be understood as elemental to and reflective of a criminal enterprise. But crimes committed by resort to cyber means are not invariably referrable to distinct nefarious enterprises, and the web sites here involved do not permit the inference of an overarching criminal purpose or organization; while Western Express may have sought to make its web sites attractive to carders, the sites themselves presented simply as publicly accessible loci for the conduct of business, the legality of which turned in the end upon the independent agendas of individual users. To the extent that the usage was for illegal purposes, it reflected the existence of a prevalent black market but did not reasonably justify the additional inference necessary to the viability of the proposed enterprise corruption prosecution, that there was within that market an enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated.

Accordingly, the order of the App ellate Division, insofar as appealed from, should be reversed and the orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated.

*11 Eugene F. Pigott, Jr., J.(dissenting):

The days of traditional organized crime families seem to be fading. Instead, in today’s modern world, criminal organizations now vary in size and even operate on a global span by way of the computer. Criminal organizations operating on the internet do so without any notion of a hierarchy or any formalized decision-making process. The New York State Legislature, recognizing that organized crime is evolving, has expressly permitted courts and prosecutors to apply the Enterprise Corruption statute (Penal Law §460.20 [1] [a]), in their discretion, to organizations that engage in a pattern of criminal activity and that possess any sort of “ascertainable structure” (see Penal Law §460.00).

The majority correctly summarizes the Grand Jury presentation by the People, noting the following: (1) defendant Western Express purchases “large sums of the unregulated internet currenc[y]”; (2) it then transfers this money to customers with “assumed name” accounts; (3) those “customers” then buy stolen credit card information with this unregulated money; and (4) the “customer” then sells the currency back to Western Express obtaining U.S. dollars in return with Western Express taking an additional commission. As the majority notes,

*12 this is simply a digital form of money laundering.

My colleagues conclude that no “ascertainable structure” was presented to the Grand Jury in this case because, although there was a “prevalent black market” for stolen credit card information, within that market there was no “enduring structurally distinct symbiotically related criminal entity with which appellants were purposefully associated” (majority op at 11). I find no such requirement in the statute.

The People allege that a cybercrime group (which the People termed the Western Express Cybercrime Group), was formed. The group included a pre-existing corporation, Western Express International, Inc., that acted as the “money mover” for the other members of the group. Those other members included “vendors” and “buyers” who trafficked in stolen credit card numbers and other stolen personal identifying information.

The group acted with a common purpose to engage in conduct constituting the crime, among others, of trafficking stolen information, while avoiding detection by law enforcement. Specifically, the vendors and buyers, through Western Express, were permitted to conduct anonymous transactions, via the internet and by other means, using sophisticated payment schemes. Western Express further assisted the buyers and vendors by helping structure the transactions to avoid federal reporting requirements. For instance, via computer, Western Express employees advised certain members to structure wire transfers in small amounts under various names. Thus, although the members had their own self-interest to profit from the

*13 criminal activity, they also acted for the benefit of both the vendors and buyers. Indeed, all of the participants of the group were acting together for the intended result and common goal of ensuring that all parties to and proceeds of the transactions remain virtually untraceable.

The purpose in enacting the Enterprise Corruption statute “was to address the particular and cumulative harm posed by persons who band together in complex criminal organizations” (People v. Besser, 96 NY2d 136, 142 [2001]). Here, Western Express and the other group members banded together in a way that was distinct from a simply buy-sell transaction on the black market. Rather, the parties acted in an organized way, or, in other words by an “ascertainable structure”, which allowed the members to be more successful in effecting their criminal purpose and to avoid detection from law enforcement for several years.

I would, therefore, affirm the order of the Appellate Division.

1. These included scheme to defraud, conspiracy, grand larceny, money laundering, possession of stolen property, and falsifying business records. No issue is before us respecting the sufficiency of the counts charging these offenses; this appeal concerns no more than the sufficiency of the evidence offered in support of the enterprise corruption count.

2. Vassilenko estimated that 5 percent of his business was from carding transactions. The People contend that the actual percentage was much higher.

3. As is here relevant the Legislature in enacting the OCCA was careful to explain that “[t]he organized crime control act is a statute of comparable purpose [to that of RICO] but tempered by reasonable limitations on its applicability, and by due regard for the rights of innocent persons. Because of its more rigorous definitions, this act will not apply to some situations encompassed within comparable statutes in other jurisdictions” (Penal Law §460.00 [emphasis supplied]).

4. We note that, while the Appellate Division offered that the common purpose of the purported enterprise was to encourage more and larger criminal transactions, there was no proof that Western Express’s customers availed themselves of the company’s services with any objective other than the expedient conduct of their own individual transactions.

5. There are numerous providers of such services and, in fact, after Western Express’s demise, its carder clientele simply switched to different providers of comparable services.

Order, insofar as appealed from, reversed and orders of Supreme Court, New York County, dismissing the enterprise corruption count of the indictment as against appellants, reinstated. Opinion by Chief Judge Lippman. Judges Ciparick, Graffeo, Read, Smith and Jones concur. Judge Pigott dissents and votes to affirm in an opinion.

The defendant “benched” the case and a trial was held without a jury before the Hon. Richard Carruthers beginning on May 3, 2005. According to the trial transcript, Wells blew through a red light and hit the vehicle in which Ms. Gubernikoff and her father were riding. Eyewitnesses stated that Wells was driving very fast at the time of the accident, completely disregarded the semaphore in the intersection, and was completely incoherent immediately after the accident. In fact, Wells’ blood alcohol content at the time he was tested shortly after the accident was between .25% and .27%, which is more than three times the legal limit.

After trial, Wells was convicted of Murder in the Second Degree under a “depraved indifference” theory and sentenced by the judge to concurrent indeterminate prison terms of from seventeen years to life. Wells appealed his conviction directly to the Supreme Court, Appellate Division, First Department, arguing that “that the evidence [was] insufficient to sustain conviction of murder in the second degree and assault in the second degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct.” See People v. Wells, 53 A.D. 3d 181 (1st Dep’t 2008). Additionally, before his appeal was decided in the intermediate appellate court, New York’s highest court, the Court of Appeals, decided People v. Feingold, 7 N.Y.3d 288 (2006), which overturned People v. Register 60 N.Y.2d 270 (1983). After Feingold, the standard for depraved indifference crimes to require courts to look at the mental state from a subjective point of view, finding guilty only where the particular defendant demonstrates “‘a willingness to act not because [he] intends harm, but because [he] simply doesn’t care whether grievous harm results or not . . . . A defendant must possess an “utter disregard for the value of human life . . . embodied in conduct that is so wanton, so deficient in a moral sense of concern, and so blameworthy as to render the actor as culpable as one’ who intends the result of his acts.” Wells v. Perez, 10 Civ. 1107 (S.D.N.Y. 2010) (Report and Recommendation of Francis IV, J.).

Wells’ conviction was upheld by the First Department, in a 2008 Opinion authored by Justice Tom. In Wells, the Appellate Division ruled that since the crime took place and the trial was held in the Register era, New York’s standard of proof necessary to support a conviction of depraved indifference murder had been met. The court set forth the standard it applied as follows:

Depraved indifference murder is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law §125.25[2]). Similarly, assault in the first degree under a depraved indifference theory is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person” (Penal Law §120.10[3]). A person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk” (Penal Law §15.05[3]). The law in effect at the time of defendant’s trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 [2006], supra, but instead referred to an objective standard reflected by the “factual setting in which the risk creating conduct must occur” (see Register, 60 N.Y.2d at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704). Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see id. at 300, 469 N.Y.S.2d 599, 457 N.E.2d 704 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).

. . .

Under Register, depraved indifference murder requires that a defendant’s act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 N.Y.2d at 274, 469 N.Y.S.2d 599, 457 N.E.2d 704). The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to “the factual setting in which the risk creating conduct must occur” (id. at 276, 469 N.Y.S.2d 599, 457 N.E.2d 704).

The court listed several factors which led to its conclusion that the Register standard had, in fact, been met in this case:

• Defendant chose to drive while heavily intoxicated;
• Defendant was traveling 50-60 mph on busy NYC streets;
• In addition to the speed, defendant drove “dangerously” as evidenced by his striking a parked car and nearly striking another before the fatal accident;
• Although “heavily intoxicated,” defendant still had the presence of mind to attempt to flee the scene; and
• Defendant had previously attended a class aimed at preventing drunk driving

Based on the application of these facts to the Register standard (“[t]he act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life”), the First Department upheld the conviction.

Six days later, however, the Court of Appeals, in People v. Jean-Baptiste, 11 N.Y.3d 539 (2008), retroactively applied Feingold to all cases pending on direct appeal “in which the defendant has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction.” Id. at 542.

Defendant then petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus. Wells v. Perez, 10 Civ. 1107 (DLC) (JCF) (S.D.N.Y. 2010). The case landed in front of the Honorable Denise L. Cote and Magistrate Judge James C. Francis IV. In his petition, arguing that his state court conviction was obtained in violation of clearly established Federal law.

In a letter recommendation report to Judge Cole, Magistrate Judge Francis wrote that under recent New York law, “a defendant’s decision to drink, made hours in advance of a later accident, is insufficient to uphold a depraved indifference conviction.” Later, Judge Francis wrote, “[t]herefore, the First Department’s holding in Wells, which upheld the petitioner’s convictions for depraved indifference crimes based on a finding of culpable mens rea at the moment he chose to begin drinking, is no longer good law.” After a lengthy discussion of the various procedural issues that mark the case, Judge Francis noted that the First Department reached the wrong result on the merits, stating, in his letter to Judge Cote that “no rational trier of fact could have convicted the petitioner of second degree murder or first degree assault under depraved indifference theories based on the evidence at trial.” Francis wrote that the evidence submitted that Wells had attended an alcohol rehabilitation training course was only relevant to his state of mind at the time he began drinking which under the properly applied Court of Appeals decisions, “is insufficient to support the conclusion that, prior to the acidence, he possessed a culpable state of mind tantamount to intent to harm.” The fact of intoxication to an extreme degree actually negated his intent: “Mr. Wells’ level of intoxication . . . would have made it extremely difficult, if not impossible, for him to comprehend the nature and consequences of his actions such that he could be found to have evinced a conscious, callous disregard for those consequences; in any case, proof that Mr. Wells possessed such a culpable mindset was not presented at trial.” Based on its analysis of these factors, among others, Judge Francis recommended that the petition be granted, but also held that a retrial of Wells would not violate double jeopardy standards.

If you have been charged with a serious offense, you need experienced counsel with knowledge of New York statutory and decisional law.

A common felony in New York is Criminal Possession of a Controlled Substance in the Third Degree, or Possession with the Intent to Sell (New York Penal Law Section 220.16[1]). Interestingly, possessing a controlled substance with the intent to sell it is a Class B felony, which means that it is just as a serious as selling a small quantity of a controlled substance (see Criminal Sale of a Controlled Substance in the Third Degree, PL 220.39 [sentencing chart]). There is no minimum weight or amount of drugs required under this crime. Indeed, one can be found guilty of this crime even when he possesses a miniscule amount of drugs, so long as the prosecution can prove that the person intended to sell those drugs.

The intent element of this crime can be proven in several different ways. For example, evidence of contemporaneous drug sales can be used to prove that the drugs recovered by the police were intended for sale. Sometimes, undercover officers may observe individuals make several suspicious hand-to-hand exchanges on the sidewalk with apparent drug buyers. If the police later arrest such a seller without apprehending any of the apparent buyers, they will be unable to charge the seller with any drug sales. However, if the police discover drugs in the seller’s possession, they can charge the seller with the equally serious possession with the intent to sell. See People v. Cox, 246 A.D.2d 362 (1st Dept. 1998) (noting that evidence of uncharged and contemporaneous drug sales were highly probative of the defendant’s intent to sell).

The intent element can also be inferred, in some cases, by the quantity of controlled substance recovered in the suspect’s possession. Although there is no bright line rule or minimum amount, if the quantity in the person’s possession exceeds what might be considered a quantity fit for personal use, then a jury may be able to find that the person intended to sell it. See People v. Alvino, 71 N.Y.2d 233, 245 (1987); People v. Patchen, 46 A.D.3d 1112, 1113 (3d Dept. 2007). But see People v. McCoy, 873 N.Y.S.2d 372 (3d Dept. 2009).

Of course, if a person possesses a very large quantity of a controlled substance, they may also be subject to other felony charges (see e.g. Criminal Possession of a Controlled Substance in the First Degree, Penal Law Section 220.21; Criminal Possession of a Controlled Substance in the Second Degree, Penal Law Section 220.18; Criminal Possession of a Controlled Substance in the Third Degree, Penal Law Section 220.16[8]; Criminal Possession of a Controlled Substance in the Fourth Degree, Penal Law Section 220.09; Criminal Possession of a Controlled Substance in the Fifth Degree, Penal Law Section 220.06). Further explanations of these quantity-based charges are available here.

The intent element can also be proven by the packaging of the controlled substance or by other paraphernalia in the person’s possession. For example, one’s guilt of this charge may be shown where the controlled substances are individually packaged in small amounts meant for distribution to multiple buyers, or where the person has a quantity of a controlled substance and numerous small empty bags or vials seemingly waiting to be filled for sale. But see People v. Sanchez, 86 N.Y.2d 27, 35 (1995); People v. Martinez, 228 A.D.2d 185 (1st Dept. 1996) (no intent to sell where only a small amount of money and drugs and no sales-like packaging).

Other paraphernalia sometimes considered to be evidence of the intent to sell include large quantities of cash in small denominations, multiple cell phones, tin foil, razors, or a weapon such as a firearm. See People v. Jones, 47 A.D.3d 961, 963 (3d Dept. 2008); People v. Hawkins, 45 A.D.3d 989 (3d Dept. 2007).

Finally, the intent element can always be proven with statements made by the suspect. The possessor of the controlled substances might make an incriminating statement to an undercover officer, on a wiretapped telephone, or even to a prosecutor in an interview. See e.g. People v. Henry, 73 A.D.3d 1391 (3d Dept. 2010).

If you find yourself charged with possession with intent to sell or are looking to appeal a conviction for such a charge, you should speak to an experienced criminal attorney about defending drug charges of PL 220.16, or appealing a conviction for a drug or narcotics offense.

Previously, a criminal defendant convicted of a felony was eligible for “discretionary persistent felony offender” sentencing if he had two prior felony convictions for which he had received sentences of one year (or more) in jail. See Penal Law Section 70.10. Then, if the court decided that the “history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision indicate that extended incarceration and life-time supervision will best serve the public interest,” the court could sentence the defendant to a sentence ranging from 15 years to life to 25 years to life. Id.

Many defendants sentenced to life sentences as “discretionary persistent felony offenders” unsuccessfully challenged the constitutionality of the law in New York state appellate courts. However, in 2004, the U.S. Supreme Court issued a decision – Blakely v. Washington, 542 U.S. 296 (2004) – that laid the groundwork for Besser. In that case, the Supreme Court decided that a Washington state statute that permitted judges to enhance sentences where they found “aggravating factors” was unconstitutional, in that it violated the Sixth Amendment by allowing judges to sentence defendants based upon facts that were not expressly determined by juries. The Second Circuit relied on this decision in Besser, explaining: “the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s [discretionary predicate felony offender] statute.” Besser v. Walsh, 2010 U.S. App. Lexis 6704, at *4 (2nd Cir. Mar. 31, 2010).

Although Besser is not technically binding upon New York state courts, the decision cannot be ignored for several reasons. First and foremost, Besser is a straightforward application of the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), which held that a Washington state sentencing statute very similar to New York’s discretionary persistent felony offender statute was unconstitutional for the reasons explained above. See Besser, 2010 U.S. App. Lexis 6704, at *38-44, 52-59. Thus, it is likely only a matter of time before either the U.S. Supreme Court or the New York Court of Appeals issues a decision on New York’s discretionary predicate felony offender sentencing statute in line with Blakely and Besser.

[1] After all, as a practical matter, the New York Court of Appeals will have to soon recognize that the Second Circuit’s decision provides an almost foolproof avenue for relief for anyone sentenced in New York state court as a discretionary persistent felony offender: a writ of habeas corpus. Indeed, given that the Besser panel unanimously decided to vacate the sentences of all four of the appellants sentenced post-Blakely to discretionary persistent felony offender life imprisonment, see Besser, at *62, New York state courts would have to expect defendants to prevail on federal habeas appeals if they were sentenced to life imprisonment under this law.

The New York Assembly can probably figure out a way to re-write their law to accomplish their original objectives. Indeed, it would be easy for the legislature to restructure the sentencing laws to increase the penalties for repeat offenders without creating a constitutional problem. The law could simply provide for wide sentencing ranges for people with three (or more) felony convictions, with a maximum life sentence. But, in the meantime, defendants will no longer have to serve life sentences as “persistent felony offenders,” because the Federal courts will simply overturn those sentences.

[1] But see People v. Rivera, 5 N.Y.3d 61 (2005) (upholding the constitutionality of New York’s discretionary persistent felony offender sentencing statute by concluding that it was distinguishable from the Washington state sentencing statute overturned in Blakely). Notably, however, in Besser, the Second Circuit explicitly considered Rivera and flatly rejected its holding. See Besser, supra, at *52-59.

At trial, Galluzzo conceded the facts of the arrest and that the defendant possessed the knife in question. The defense employed was simple, yet effective: the knife was not a switchblade.

Penal Law section 265.01 reads as follows:

§ 265.01 Criminal possession of a weapon in the fourth degree. A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or “Kung Fu star”

The definition of switchblade is contained in Penal Law section 265.00(4).

4. “Switchblade knife” means any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife.

Thus, in order to prove the defendant’s guilt of possessing a switchblade, the People had to prove that the knife recovered from the defendant was a “switchblade,” as set forth in the charging documents. The defense challenged the prosecution’s characterization of the knife in question as a switchblade from the outset. In his opening statement, Galluzzo asserted that “Every knife has two parts, a blade and a handle. And this button or notch . . . is, in fact on the blade. So when you’re opening this knife, you’ll see what you’re really pushing on is the blade and not he button on the handle.”

The arresting officer testified as to the details of the arrest, and reported to the jury that the defendant told him that he carried the knife for his protection, since he could not legally carry a gun. The officer testified that the defendant acted in a cool, calm and collected manner in dealing with the officers, and that he “gently” handed the knife over when asked to do so. The defense asked the arresting officer a series of questions about the location of the button on the knife, including the following:

Q: But the button is basically on the back of the blade itself so as the blade moves, the button is moving too?

A: Correct.

Later, when the arresting officer’s partner testified on cross-examination, the following colloquy took place:

Q: Now that little notch without opening it, that little notch on the knife that you are pushing, that’s made out of metal, right?

A: Yes.

Q: And it’s the same metal that the blade is made out of or appears to be, right?

A: Yes.

Q: And, in fact, that little notch is actually attached to the back of the blade, correct?

A: That’s correct.

Q: And that little notch because it’s attached to the blade swings to the other side of the knife when the knife pops open; right?

A: That’s correct.

Q: And then when you close the knife back up, that little notch that’s attached to the blade swings back through the handle of the knife back into the back where it is now, right?

A: That’s correct.

Later, in summation, Galluzzo highlighted the confusing nature of the statute in question:

“You know what, it seems almost absurd that we’re here. Why can’t someone just tell us whether this things is a switchblade or not. The legislature was supposed to tell us But, unfortunately, once again, we have been failed by our State legislature because we’ve been given a statute that’s poorly written and does not make clear what is and what is not a switchblade. As a result, people are getting arrested for possessing knives that they don’t realize are illegal, and you’re being brought here and forced to sit through a trial to sort this whole mess out.”

The defense went on to discuss the knife itself:

“You could see if you look up close at the knife that it’s all one piece of metal, that blade, and that blade has a sharp side and on the back it has this little notch sticking out. So are you pushing a button or device in the handle? No, you’re pushing the blade when you’re opening up the knife.” Galluzzo also challenged the characterization of the mechanism on the knife as a ‘button’: “You could compare that where — to what you think is a classic switchblade you may have seen in old movies like West Side Story, Twelve Angry Men or Rebel Without a Cause . . . where it’s the switchblades that people have. Maybe you’ve seen one in real life or maybe on TV, you would think of a long thin handle and right in the middle of that long thin handle, there is a button, a button you have to depress like on a computer keyboard, press that button in the middle of the handle and out pops the long, thin blade that’s about the same length as the handle itself . . . . That’s the kind of button that this statute is [] talking about. This is not a button that you’re actually pushing. What you’re actually pushing, again, is the blade itself.”

The jury presumably agreed with the defense’s interpretation of the statute, and returned a not guilty verdict.

“This juvenile delinquency proceeding arose from events that occurred at a movie theater on East 161st Street in the Bronx, in which a family was subjected to a moviegoer’s worst nightmare: a group of rowdy, uncontrolled teenagers sat near them and disrupted their enjoyment of the movie, and then, having ignored or mocked requests to behave properly and been ejected from the movie theater, lay in wait for the family outside the theater in order to surround, threaten and attack them when they emerged from the theater.

On November 24, 2007, appellant Tatiana N. and her co-respondent Terrence M., accompanied by a number of other youths, arrived at the theater at approximately 10 p.m. Complainants J.F. and R.W., along with J.F.’s 24-year-old daughter and her two-year-old son, were watching a movie that was about two-thirds under way. The youths sat near the family and began making crude remarks, using their cell phones, and being noisy and disruptive. J.F. and then R.W. asked them “to please keep the noise down.” Some unpleasant remarks were offered in response, which J.F. and R.W. initially disregarded, until, after a subsequent request to keep the noise down, the group responded by becoming aggressive and cursing, saying “[t]he [h]ell with you,” “[f]___ you,” and “[s]hut up.” R.W. then left his seat to go to the lobby to complain, brushing Terrence’s arm or cell phone in the process. The teenagers followed him out. J.F., concerned for R.W.’s safety, followed as well.

When the group reached the lobby, an argument ensued in front of a theater security guard. After about three minutes R.W. and J.F. were permitted to return to the movie; the teenagers were not. A few minutes after they had returned to their seats, however, one of the theater staff asked them to return to the lobby. The group of teens was still there, cursing and threatening to “kick your ass,” and the guard informed R.W. that Terrence had alleged that R.W. punched him in the face. R.W. denied the charge, and he and J.F. were again permitted to return to the theater. During this interchange, Terrence looked at R.W. and pointed his left hand at R.W. in the shape of a gun.

At the end of the movie, J.F. called for a cab to pick the family up outside the theater, but they had to cross the theater parking lot to meet it. They exited the building and had begun walking across the parking lot, J.F. taking the lead in an effort to look out for the rest, when the group was surrounded from behind by the teenagers, including Terrence and Tatiana, threatening and taunting them with such remarks as “Oh, what[,] you be tough now,” and “I’m going to kick your ass.” J.F. gave his daughter his cell phone, telling her to call the police.

R.W. turned and headed back to the theater to seek assistance from theater security staff, and several of the teenagers, including Terrence and Tatiana, followed and attacked him, with Terrence and another teenager hitting him from behind. J.F. ran toward R.W. to assist him, and the group then focused on J.F., trying to hit him. When R.W. returned, he tried to help J.F., and both men testified that they saw Terrence swinging at J.F. with a knife in his hand. According to J.F., Terrence had also tried to punch him, but he was able to block the blow and kick Terrence in the chest. J.F. testified that he sustained injury to the area around his ribs in the process of jerking around to avoid the attack.

The teenagers regrouped, and Tatiana turned to threaten J.F.’s daughter, who was holding her two-year-old son. Tatiana taunted, “I’m going to kick your ass, come on let’s fight,” and told the young woman to “put the kid in the car” so they could fight. R.W. stepped in between the two women, and Tatiana swung at R.W. and pulled his hair, her fist grazing his forehead but not causing any injury. When J.F., in turn, warned Tatiana not to hit the others, Tatiana chest-bumped him.

J.F. kept yelling that the police were on the way, and eventually the teens headed east on 161st Street. The police arrived shortly thereafter.”

All of the judges agreed that these facts made out attempted assault, menacing and related charges with respect to Tatiana’s conduct toward J.F. The primary question on appeal, however, was whether Tatiana could be held liable as an accessory to Terrence’s second-degree Assault (assault with a deadly weapon) charge. Tatiana argued that her level of participation in Terrence’s knife assault did not rise to the level necessary to support that she acted in concert with Terence to achieve the knife assault. As put by the majority (Saxe, J.): “We disagree with regard to whether the evidence supports those findings against Tatiana that are based on her accessorial liability for Terrence’s use of a knife: assault in the second degree, attempted assault in the second degree, menacing in the second degree, criminal possession of a weapon, and reckless endangerment. Our colleague would vacate those findings, apparently on the ground that Tatiana neither possessed nor exercised control over the knife used by Terrence, nor importuned its use. In our view, the factual issue of whether Tatiana was aware that Terrence possessed the knife and intended that it be used during the group’s attack was correctly resolved here.”

After discussing general principles of accessorial liability, the Court stated that “Where an individual continues to participate in a criminal activity after a companion pulls out a previously concealed weapon, the factfinder may rationally conclude that the individual shared the requisite intent for the crime (see id.). Indeed, even the mere act of blocking a victim’s path of retreat has been found to support a finding of accessorial liability (see e.g. People v. Linen, 307 AD2d 855, 855-856 [2003], lv denied 1 NY3d 575 [2003]). Had Tatiana merely helped surround the family during Terrence’s attack, a finding of accessorial liability would have been proper. But she did much more than that. While Terrence attacked J.F. with a knife, Tatiana was present, shouting threats and throwing her own punches, and she continued to participate in the attack on the family long past the moment when Terrence began using the knife. Tatiana’s taking part in chasing, surrounding, threatening and attacking the entire party of victims, and more particularly chest-bumping J.F. in the course of threatening his daughter after Terrence had attacked with the knife, justifies the conclusion that she and Terrence were working together to menace and attack J.F. and his family, which involved the use of Terrence’s knife, and that she shared in Terrence’s intent to use the knife as part of the attack (see e.g. Matter of Tiffany D., 29 AD3d 693 [2006]).”

Justice Andrias dissented primarily on the ground that there was insufficient evidence to support the inference that Tatiana had knowledge that Terrence was going to use or actually did use a knife in the assault: “There is no evidence whatsoever that appellant possessed or exercised control over the knife, gave the knife to Terrence, or knew that Terrence possessed the knife and intended to use it during the attack. Neither the complainant nor his partner knew where Terrence got the knife and neither saw appellant with a knife at any point. Nor can it be determined whether appellant ever saw the knife in Terrence’s hand during the course of the attack and supported its continued use thereafter. The complainant testified that he could not see very clearly, and neither he nor his partner was able to describe the knife in detail. The complainant’s partner only saw Terrence “flash[]” a knife, but did not see Terrence swing the knife. While the teenagers may have taunted that they would “kick your ass” at various moments during the encounter, there was no testimony that appellant or any other of the teenagers ever importuned the use of a knife. The complainant also testified that appellant was standing to the side of Terrence at the point when the teenagers surrounded him. The complainant’s partner testified that he did not see appellant hit the complainant and that the complainant was hit when he was surrounded by Terrence and “other guys.” Thus, it cannot be determined on the record before us when appellant separated from Terrence and the other teenagers to confront the complainant’s daughter, who was standing a number of yards away, or whether appellant was still with the group of teenagers confronting the complainant when Terrence allegedly flashed or swung the knife. Accordingly, the foregoing counts requiring that appellant share Terrence’s specific intent to possess, display or use a dangerous instrument should have been dismissed (compare People v. McLean, 307 AD2d 586 [2003], lv denied 100 NY2d 643 [2003]).”

A mechanism in the law will allow for Tatiana’s lawyers to seek leave through Justice Andrias, and we suspect that this question may ultimately be decided by the Court of Appeals in Albany.

The prosecution presented evidence that the defendant got into a parked delivery truck without permission and, while intoxicated, caused it to roll downhill through an intersection and strike three persons (killing one child and seriously injuring two other people). The defendant testified that he observed the parked truck suddenly start rolling downhill, and that he jumped into the moving vehicle in a heroic, but ultimately unsuccessful, attempt to prevent it from causing harm.

The majority (by 3-2 vote) overturned the conviction because the trial judge declined to charge the jury on the defense of justification, provided in Penal Law Section 35.05:

“[C]onduct which would otherwise constitute an offense is justifiable and not criminal when: 2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue… Whenever evidence relating to the defense of justification under this subdivision is offered for the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.”

It is unsurprising that defendant was convicted, as the credible evidence against him seemed overwhelming. The defendant’s blood was taken after his arrest, and the subsequent chemical tests on the blood revealed that he likely had a blood alcohol content (BAC) of approximately .13 and .17% at the time of the accident. For context, it is a crime to drive a motor vehicle in New York state with a BAC of .08% or higher. Also, a key prosecution witness, Carlos Montilla, testified that he observed defendant – whom he had known for over ten years – get out of the truck after the crash and state that he was “joking around” and “had taken the truck to play a trick on the owner”. He also testified that he observed the defendant drinking beer on the corner earlier in the day. In response, the defendant testified that he had not been drinking alcohol and that he did not know Carlos Montilla.

Clearly, the defendant’s testimony, from here, sounds more than a little far-fetched. Indeed, Judge McGuire, writing for the dissent, opined that “defendant’s claim… was preposterous, particularly because the evidence that defendant was intoxicated also was overwhelming and unrefuted.” Thus, the failure to charge on this defense was harmless in the dissent’s view. The dissent also agreed with the trial prosecutor’s argument that according to the defendant, the defendant did not, in fact, commit a crime, and this particular justification charge under Penal Law Section 35.05 only applies to criminal conduct done justified by emergency circumstances. In response, the majority argued that the jury could have concluded that the defendant had been lying about his intoxication, but truthful about jumping into the moving vehicle and trying to prevent the accident.

The decision seems to suggest that to be safe, a trial judge will need to charge the jury on justification anytime there is any possibility that the jury could conclude that the defendant had committed a crime in order to prevent an injury, regardless of whether the credible evidence reasonably supported that conclusion or whether it was even the defendant’s theory of the case.

Mr. Rodriguez’s sentence of 6 to 15 years was vacated and the case was remanded for a new trial. However, the Bronx District Attorney’s Office will almost certainly seek leave to appeal to the Court of Appeals, New York’s highest state court.

Next, the prosecutor introduced a mugshot photograph of the defendant’s girlfriend and asked the defendant about her own criminal record. The Court chastised the government for this guilt-by-association tactic: “This evidence had no purpose but to suggest that defendant was associated with a disreputable person (see People v Cheatham, 158 AD2d 934, 935 [1990]).” Id.

Finally, the prosecutor made improper remarks on summation, including an assertion that the defendant “was waiting for the jury to ‘give him his razor back and let him walk out the door.’” Id.

Thus, it is not surprising that the New York Law Journal quoted a Bronx District Attorney spokesman as stating that “we’ve already used this case as a ‘how not to’ example.”

i) that the record be made in the regular course of business,

ii) that it be the regular course of such business to make the record,

iii) that the record be made at or about the time of the event being recorded, and

iv) that each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception.

Ramos reinforces the notion that this is a so-called “mandetory catechism” attorneys must employ or risk reversal.

The Davis court found that the first presentation did, in fact, trigger the affirmative obligation to seek leave and reversed the defendant’s conviction. In its ruling, the Court announced that a lower court must consider when whether a given presentation has reached the point of no return, i.e. when “a withdrawal must be treated as a dismissal.” The overarching consideration being “the extent to which the presentation had progressed, i.e. whether sufficient evidence had been presented for the prosecutor to ask for a vote.” Davis, supra, at p.34, col. 5. If the first grand jury has heard evidence that would be legally sufficient to sustain a charge against a defendant, then the withdrawal thereafter operates as a dismissal and implicates CPL 190.75. The fact that the GJ1 had heard sufficient evidence of criminality, linking the defendant to the commission of the charged crime, and legally sufficient as to each and every element of the charged offenses, meant that the line had been crossed, and leave was necessary to represent. Because the prosecution did not seek such leave, the indictment needed to be dismissed, and the defendant’s conviction reversed. The policy implicated here is that to prevent “the prosecutor [from using] the device of withdrawing the case in order to get another opportunity to persuade a different, and perhaps more amenable, grand jury that it should indict.” Id. at col. 6. The court did note, however, that such reversal would not be mandated by CPL 190.75, where a given presentation of evidence was “so limited that the grand jury has no ability to consider the charge.” Id. at col. 5.

Judge Catterson authored a lengthy dissent, taking the position that the prosecution’s “decision that they have presented all of the evidence they deem necessary to secure an indictment against a specific defendant or defendants” should be controlling as to when a withdrawal of the presentation should be deemed tantamount to a dismissal. Davis, supra, at p.35 col. 2 (Catterson, J. dissenting). It may very well be that the Court of Appeals will ultimately decide the issue, if Judge Catterson decides to grant leave.

Do you need the advice of an experienced criminal appellate attorney? Call theformer Manhattan District Attorney’s Office Appellate Prosecutors at the Law Office of Matthew Galluzzo, (212) 344-5180.

• Evidence that the defendant placed a telephone call to the owner of a known Jersey City fencing operation, and that “cargo stolen from trailers had been received by [the fencing operation]” on two separate temporally proximate dates.
• Evidence that the defendant telephoned his accomplice in a prior tractor-trailer theft the day after the theft in question; and
• Evidence that the defendant had stolen a tractor-trailer three years before the incident in question in the present case.

Of these four pieces of evidence, the majority opinion quickly dismissed the first two by noting that the issue was “easy:” “This was not Molineux evidence at all. The point of Molineux is to prevent a jury from convicting a defendant because of his criminal propensity. Evidence of two criminal transactions in which defendant was not involved could show nothing about his propensity.” Arafet, N.Y.L.J. Oct. 23, 2009 at 45.

As for the third piece of evidence, that concerning the telephone call to the former “partner-in-crime” the day after the theft, the court ruled that “‘a distinctive repetitive pattern’ of criminal conduct may be admitted under Molineux to show the defendant’s identity. Repeated commission of similar crimes with the same accomplice is an example of such a pattern.” Id. (quotation omitted and emphasis added). Thus, the Court upheld the Supreme Court’s determination that the telephone call evidence as well as the evidence tending to show that the defendant and his earlier accomplice had committed a similar crime together in the past was admissible under the Molineux rule.

The Court did rule, however, that the fourth piece of evidence, that relating to the defendant’s alleged prior theft of a tractor-trailer should not have been admitted in the trial court. The government had argued in the Court of Appeals that the evidence should have been admitted under Molineux because it was a “specialized crime” probably on account of the fact that a tractor-trailer theft such as the one at issue required a certain level of technical knowledge and expertise to commit. The Court of Appeals rejected this argument, seeing “no justification . . . for creating a ‘specialized crime’ exception to Molineux. No doubt this crime is beyond the skills of the average citizen . . . . But the crime could probably have been committed by any experienced tractor-trailer driver, and we cannot believe there was no less prejudicial way to prove that defendant had experience in that line of work.” Id.

Despite its ruling that the trial judge erred in admitting the evidence on the recent conviction, the Court determined that the err was harmless, and thus upheld the conviction. It applied the well-known standard articulated in the 1970s in People v. Crimmins, 36 N.Y.2d 230 (1975): “An error of law may be found harmless where ‘the proof of the defendant’s guilt, without reference to the error, is ‘overwhelming’ and where there is no ‘significant probability . . . that the jury would have acquitted the defendant had it not been for the error.’” Crimmins, 36 N.Y. at 241-242. The Court found that the evidence in the case, albeit purely circumstantial, was “overwhelming,” mostly on account of what they deemed to be the “key piece of evidence” in the case, the “defendant’s fingerprint on the toll ticket.” Judges Graffeo, Read, and Pigott concurred in the Judge Smith’s opinion.

Judge Ciparick, joined by Judges Lippman and Jones, wrote a vehement dissent on the harmless error grounds. Judge Ciparick pointed out that the prosecution’s case was largely centered on collateral evidence of events that had no direct relation to the matter at hand: “It is remarkable that one-fifth of this trial record–spanning several hundred pages of trial testimony from numerous state and federal law enforcement officers and dozens of exhibits–is consumed by collateral matters . . . . Much of the prosecutions’s summation was centered on these matters.” Arafet, supra (Ciparick, J. dissenting).

Judge Ciparick agreed with the majority that the evidence of defendant’s more recent theft of a tractor-trailer under similar circumstances should not have been admitted under Molineux: “Defendant’s prior conviction for a cargo theft was not so peculiar that it involved a signature offense.” Id. Judge Ciparick, however, differed with the majority when it came to its approval of the admission of the evidence relating to the defendant’s telephone call to his accomplice in a prior tractor-trailer theft. Judge Ciparick noted that “[t]o establish the identity exception, Molineux demands that there be evidence of a distinctive crime forming a uniqueness that necessarily identifies the defendant as its culprit, as would a signature . . . [a]s Molineux long ago stated, ‘the naked similarity of . . . crimes proves nothing.” Id. The dissent reasoned that the evidence of the “uncharged cargo theft” the defendant was alleged to have committed with the accomplice “display[ed] neither any sort of distinctive manner that conclusively identified defendant in the allegations in this case, nor a pattern of criminal behavior. Rather, this evidence establishes nothing more than telling the jury of defendant’s propensity to commit this type of offense based upon his alleged earlier engagement in a similar type of crime along wiht a person he may have telephoned at the time of this crime.” Id. Thus, weighing the potential prejudice against the probative value of the evidence, Judge Ciparick concluded that the evidence of the telephone call and the earlier uncharged crime should not have been admitted, and that the introduction of this evidence offered the jury to use it as pure propensity evidence.

Judge Ciparick also disagreed with the majority’s ruling on the question of the admission of the evidence that the defendant placed a telephone call to the owner of a known Jersey City fencing operation, and that “cargo stolen from trailers had been received by [the fencing operation]” on two separate temporally proximate dates, primarily on the ground that the prejudicial effect clearly outweighed it’s probative value. Although noting that the question of the admissibility of this evidence was not “strictly subject to Molineux, the court must be mindful of similar dangers . . . and the danger of the defendant’s propensity to commit the charged crime and his guilt thereof merely by association with individuals with criminal pasts.” Id.

The dissent also sharply disagreed with the majority’s findings on harmless error by reviewing and questioning the non-Molineux evidence, piece by piece. On the other hand, Judge Ciparick found that the evidence that should not have been admitted carried a strong prejudicial effect, such that it “served to deprive the defendant of a fair trial.” Id.

All told, this decision can be read as having precedential value for both prosecutors and defense attorneys going forward. On the one hand, the evidence of third-party criminality may be useful to prosecutors in proving cases involving complex schemes or well-laid plans to commit a crime. On the other hand, the language of both the majority and dissenting opinions reinforced the notion that when it comes to the identity exception, the evidence of prior bad acts or convictions must be extremely similar, such that the conduct in question in both matters were a part of a pattern forming a signature crime. The challenge for defense attorneys, however, will be to make the proper motions and arguments before the trial judge to ensure that the jury does not get to consider this type of evidence before it becomes too late. This is especially so in light of the fact that the harmless error aspect of the decision suggests a somewhat low standard for what an appellate court may deem “overwhelming evidence.”