        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

410
KA 10-01259
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ROBIE J. DRAKE, DEFENDANT-APPELLANT.


DAVID J. FARRUGIA, PUBLIC DEFENDER, LOCKPORT (JOSEPH G. FRAZIER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

ROBIE J. DRAKE, DEFENDANT-APPELLANT PRO SE.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Richard C.
Kloch, Sr., A.J.), rendered May 27, 2010. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree (two
counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment, convicting him
upon a jury verdict following a retrial, of two counts of murder in
the second degree (Penal Law § 125.25 [1]). Defendant was convicted
in 1982 of killing two victims who were teenagers, and the judgment
was affirmed by this Court on appeal (People v Drake, 129 AD2d 963, lv
denied 70 NY2d 799). The United States Court of Appeals conditionally
granted defendant a writ of habeas corpus unless he was retried upon
the indictment within 90 days of its judgment (Drake v Portuondo, 553
F3d 230, 247-248 [2nd Cir]). We now reverse the judgment and grant
defendant a new trial.

     As a preliminary matter, we conclude that defendant waived his
present contention concerning the alleged lack of jurisdiction of the
acting Supreme Court Justice who presided over the trial that was
purportedly conducted in County Court, inasmuch as he failed to raise
that objection in a timely manner (see People v Ott, 83 AD3d 1495,
1496, lv denied 17 NY3d 808; see generally People v Wilson, 14 NY3d
895, 897; People v Daniels, 86 AD3d 921, 922, lv denied 17 NY3d 715).

     The underlying facts are undisputed, and the sole issue at trial
was defendant’s intent to kill the victims. On a December night in
1981, the then-17-year-old defendant left his home armed with two
                                 -2-                           410
                                                         KA 10-01259

rifles and proceeded to walk to a junk yard to shoot at abandoned
cars. He observed a rusted vehicle, which was occupied by the
victims, parked in a secluded area near the junk yard. He fired at
the vehicle from a distance of no more than 15 feet, killing both
occupants. Defendant told the police that he did not see anyone in
the vehicle before he fired the rifle and that he thereafter attempted
to conceal the killings by moving the vehicle to another location.
Defendant was observed by police officers on routine patrol when he
was attempting to place the body of the female victim in the trunk of
the vehicle, where he had previously placed the body of the male
victim.

     We agree with defendant that the court committed reversible error
in refusing to preclude evidence of an uncharged crime, i.e.,
defendant’s alleged postmortem sexual assault on the female victim, in
order to establish his intent to kill the victims (see generally
People v Ventimiglia, 52 NY2d 350, 359). Because defendant presented
expert testimony refuting the People’s evidence that the female
victim’s body had been assaulted, there was a trial within a trial on
the issue whether an uncharged crime had actually been committed (see
generally People v Robinson, 68 NY2d 541, 549-550). That was error.
The Second Circuit explicitly rejected the theory presented at the
first trial that defendant’s intent to kill the victims was the result
of a psychological syndrome known as picquerism, which the Second
Circuit referred to as a “fictive syndrome” (Drake, 553 F3d at 244).
The court properly refused to permit any reference to that alleged
syndrome at the second trial. We therefore conclude that the evidence
of the alleged uncharged crime was not “directly relevant” to the
purpose for which it was offered, i.e., defendant’s intent to kill the
victims, and thus should have been precluded (People v Cass, 18 NY3d
553, 560).

     Even assuming, arguendo, that the court properly determined that
the evidence was directly relevant to establish defendant’s intent, we
nevertheless conclude that the court abused its discretion in
determining that the probative value of the evidence outweighed its
prejudicial effect (see People v Gillyard, 13 NY3d 351, 355; cf.
People v Gamble, 18 NY3d 386, 397-398). “Prejudice involves both the
nature of the [uncharged] crime, for the more heinous the uncharged
crime, the more likely that jurors will be swayed by it, and the
difficulty faced by the defendant in seeking to rebut the inference
from which the uncharged crime evidence brings into play” (Robinson,
68 NY2d at 549). Here, the uncharged crime is particularly heinous,
and defendant sought to rebut not only the inference that he intended
to kill the victims if he sexually abused the body of the female
victim, but he also was required to defend against the equivocal
evidence that the uncharged crime was actually committed. We thus
conclude that the “distance of the particular [disputed] fact from the
ultimate issue[] of the case” is too great to render the evidence of
the alleged uncharged crime more probative than prejudicial with
respect to the sole issue whether defendant intended to kill the
victims (People v Spotford, 85 NY2d 593, 597 [internal quotation marks
omitted]). We further conclude that the error is not harmless (cf.
Gillyard, 13 NY3d at 356; see generally People v Crimmins, 36 NY2d
                                 -3-                          410
                                                        KA 10-01259

230, 241-242). We therefore reverse the judgment and grant a new
trial. We reject defendant’s remaining contentions with respect to
additional alleged Molineux errors.

     We also agree with defendant’s contention, raised in his pro se
supplemental brief, that the court committed a reversible mode of
proceedings error in failing to advise counsel of that part of a jury
note seeking guidance on how to proceed in the event that the jury was
unable to reach a unanimous verdict on count one and, in addition, in
failing to respond to that question (see People v Tabb, 13 NY3d 852,
853; see generally CPL 310.30; People v O’Rama, 78 NY2d 270, 276-277).
We therefore reverse the judgment on that ground as well.

     In light of our determination to grant a new trial, we have also
addressed certain of defendant’s remaining contentions in the interest
of judicial economy. First, we reject defendant’s contentions with
respect to the alleged errors in charging the jury. We also reject
defendant’s contention that the court erred in determining that the
physician who conducted the autopsies of the victims was not available
to testify at the second trial by reason of illness or incapacity (see
CPL 670.10 [1]), and thus properly allowed her testimony from the
first trial to be read into the record. We reject defendant’s further
contention that the court abused its discretion in precluding his
expert from giving certain opinion testimony and in refusing to admit
in evidence a hand-drawn diagram prepared by that witness (see People
v Monk, 57 AD3d 1497, 1498, lv denied 12 NY3d 785; see generally
People v Carroll, 95 NY2d 375, 385). In light of our determination,
we decline to address defendant’s remaining contentions.




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
