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

384
KA 11-00056
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

BENJAMIN S. GIBBS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DREW R. DUBRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Frank P.
Geraci, Jr., J.), rendered October 20, 2010. The judgment convicted
defendant, upon a jury verdict, of predatory sexual assault against a
child.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of predatory sexual assault against a child (Penal
Law §§ 130.50 [4]; 130.96). We agree with defendant that County Court
committed reversible error by admitting evidence of prior bad acts of
sexual abuse against the victim’s mother and another woman. With the
assistance of the police, the victim’s mother recorded a telephone
conversation between herself and defendant, and she made repeated
references to the prior bad acts throughout the conversation in her
attempt to have defendant admit to sexually abusing the victim. We
conclude that the court erred in determining that the references to
the prior bad acts were admissible because they were inextricably
interwoven with the allegations against the victim. In the context of
a recorded call, when references to prior bad acts in the conversation
are “inextricably interwoven with the crime charged in the
indictment,” the entire conversation “may be received in evidence . .
. where . . . the value of the evidence clearly outweighs any possible
prejudice” (People v Vails, 43 NY2d 364, 368-369). “ ‘To be
inextricably interwoven . . . the evidence must be explanatory of the
acts done or words used in the otherwise admissible part of the
evidence’ ” (People v Swanson, 103 AD2d 1024, 1024, quoting People v
Ventimiglia, 52 NY2d 350, 361). Here, we conclude that the disputed
references were not explanatory of the rest of the conversation. The
statements regarding defendant’s prior bad acts were numerous, but
                                 -2-                           384
                                                         KA 11-00056

they could have been redacted from the transcript of the recorded call
without making the statements regarding the victim incomprehensible
(see Swanson, 103 AD2d at 1024). In other words, the statements
concerning the victim are “clearly understandable” by themselves and
are “not dependent upon” the statements concerning defendant’s prior
bad acts (id.). We further conclude that the prejudicial effect of
those numerous references to the prior bad acts outweighed any
probative value, and the references therefore should have been
redacted (see People v Resek, 3 NY3d 385, 389).

      We further agree with defendant that the court abused its
discretion in its Sandoval ruling. The court ruled that defendant
could be cross-examined with respect to a prior offense if he were to
testify because that evidence was already admitted through the
recorded telephone call. In so ruling, the court failed to balance
the probative value of the evidence with the prejudicial effect (see
People v Williams, 56 NY2d 236, 238-239; People v Clark, 42 AD3d 957,
959, lv denied 9 NY3d 960). We agree with defendant that the above
errors are not harmless inasmuch as the proof against defendant was
not overwhelming (see generally People v Crimmins, 36 NY2d 230, 241-
242).




Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
