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

756
KA 12-00108
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

RONALD J. LARKINS, DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

RONALD J. LARKINS, DEFENDANT-APPELLANT PRO SE.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the   Cayuga County Court (Mark H.
Fandrich, A.J.), rendered December   23, 2011. The judgment convicted
defendant, upon a jury verdict, of   robbery in the first degree (three
counts), criminal use of a firearm   in the first degree (two counts),
criminal possession of a weapon in   the second degree (two counts) and
criminal possession of a weapon in   the third 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: On appeal from a judgment convicting him following a
jury trial of, inter alia, three counts of robbery in the first degree
(Penal Law § 160.15 [2], [3], [4]), defendant contends that County
Court’s Molineux ruling constitutes reversible error. We agree.

     Prior to trial, the court granted the People’s motion to present
Molineux evidence for the limited purpose of proving defendant’s
identity (see People v Molineux, 168 NY 264, 293-294). Pursuant to
the court’s ruling, the People presented evidence on their direct case
that defendant was the perpetrator of an attempted robbery of a hotel
clerk in Syracuse, Onondaga County, shortly before the crime at issue
herein, i.e., the robbery of a hotel clerk in Weedsport, Cayuga
County. At the time of the instant trial, defendant had been charged
with criminal conduct in Onondaga County including attempted robbery,
but not tried or convicted on any of the charges there. Nevertheless,
during the instant trial, the People presented the testimony of five
witnesses who referred to defendant’s alleged involvement in criminal
conduct in Onondaga County and offered in evidence a video recording
purportedly depicting defendant committing the attempted gunpoint
robbery there. The Molineux evidence therefore pervaded the trial.
                                 -2-                           756
                                                         KA 12-00108

     Inasmuch as the court rejected other grounds for admission of the
Molineux evidence and limited its ruling to evidence establishing
defendant’s identity, our review is limited to that ground (see People
v Concepcion, 17 NY3d 192, 194-195). “Before admitting evidence of
other crimes to establish identity, the Trial Judge must find that
both modus operandi and defendant’s identity as the perpetrator of the
other crimes are established by clear and convincing evidence”
(Prince, Richardson on Evidence § 4–514 [Farrell 11th ed]; see People
v Robinson, 68 NY2d 541, 548). Here, the record establishes that the
court ruled that the evidence of defendant’s identity with respect to
the attempted robbery would be admissible as a matter of law, but did
not determine the relevancy of the identification evidence of the
attempted robbery, nor did it properly balance its prejudicial effect
as against its probative value (see People v Chaney, 298 AD2d 617,
618-619, lv dismissed in part and denied in part 100 NY2d 537; see
generally People v Alvino, 71 NY2d 233, 242). Additionally, there is
no indication in the record that the court found that the modus
operandi and defendant’s identity as the perpetrator of the attempted
robbery were established by clear and convincing evidence. We thus
conclude that the case before the jury became a prohibited “trial
within a trial” (Robinson, 68 NY2d at 550; see People v Drake, 94 AD3d
1506, 1508, lv denied 20 NY3d 1010). We further conclude that the
evidence of the attempted robbery was “sufficiently prejudicial so as
to deprive defendant of a fair trial” (People v Ortiz, 156 AD2d 77,
79, lv denied 76 NY2d 793; see generally People v Lewis, 69 NY2d 321,
328). We therefore conclude that defendant is entitled to a new
trial.

     Contrary to defendant’s further contentions in his main brief,
the evidence presented at trial, without the inadmissible
identification evidence, is legally sufficient to support the
conviction (see generally People v Bleakley, 69 NY2d 490, 495) and,
viewing the properly admitted evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we conclude that the verdict is not against the weight of the
evidence (see generally Bleakley, 69 NY2d at 495). In view of our
determination to grant a new trial, we do not address defendant’s
remaining contentions in his main and pro se supplemental briefs.




Entered:   July 19, 2013                       Frances E. Cafarell
                                               Clerk of the Court
