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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 47
The People &c.,
            Respondent,
        v.
Reginald Powell,
            Appellant.




          Salvatore A. Gaetani, for appellant.
          Maria I. Wager, for respondent.




GARCIA, J.:
          In People v Primo, we rejected the notion "that
evidence of third-party culpability occupies a special or exotic
category of proof" requiring a heightened evidentiary standard
for admission (96 NY2d 351, 356 [2001]).   Instead, we clarified

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that third-party culpability evidence should be evaluated in
accordance with ordinary evidentiary principles by balancing the
proffered evidence's probative value against its potential for
undue prejudice, delay, and confusion.    Defendant Reginald Powell
challenges the Primo standard as constitutionally deficient in
light of the Supreme Court's subsequent ruling in Holmes v South
Carolina (547 US 319 [2006]).    We now confirm that the standard
set forth in Primo does not infringe upon a defendant's
constitutional right to present a complete defense as set forth
in the Sixth and Fourteenth Amendments.   Applying that standard
here, we conclude that the trial court did not abuse its
discretion by precluding defendant's ill-defined and speculative
third-party culpability evidence.
           Jennifer Katz was murdered on or about December 28,
2010.   The police discovered Katz's body in her bedroom closet;
her hands were bound behind her back, fabric was tied around her
neck, and she was wrapped in bedding.    She died from a single
stab wound to the neck.
           Defendant's brother, Warren Powell, was a sanitation
worker and his collection route included Katz's house.    Warren
and Katz had a prior relationship and cohabited in Katz's house
for five or six years.    During that time, Katz purchased a
$500,000 life insurance policy that named Warren as the
beneficiary.   The couple separated in the spring of 2010, several
months before Katz's death.   After their separation, Katz and


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Warren remained on good terms.    Warren would on occasion use the
entry code for the garage door to gain access to Katz's house.
          On Warren's recommendation, Katz hired defendant to do
gardening and other work.    On December 27, 2010, a witness saw
defendant shoveling snow from Katz's driveway.   Katz was last
seen the next day, December 28, at approximately 11:00 a.m.
About forty minutes later, an unanswered one-minute phone call to
Warren was made from Katz's phone.
          On December 29, Warren and his coworker noticed that
Katz had left her garbage cans at the curb from the day before
and failed to leave any recyclables at the curb for collection.
Warren and his coworker found this strange because Katz was
meticulous about retrieving her empty garbage cans and placing
recyclables out for collection.
          The following evening, before police discovered the
body, they stopped defendant, who was driving Katz's car, for a
routine traffic violation.   Defendant fled on foot, but was
apprehended after a short chase.    Women's jewelry was found in
defendant's possession.   He told the police that he did not have
a driver's license, that he lacked permission to use Katz's car,
and that he was on parole.
          Defendant made a number of voluntary statements to the
police, including that he had discovered Katz's body in a closet
in her home and that he feared he would be blamed for her murder
because he was on parole.    He admitted that he fled the scene


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after taking some of Katz's jewelry and her car.   Prior to his
arrest, defendant had attempted to sell Katz's car for a fraction
of its value.   Defendant initially denied that he had sexual
intercourse with Katz, but later asserted that they had been
intimate on prior occasions.   Although defendant admitted finding
the body, he denied that he killed Katz.
            The People presented forensic evidence that defendant's
DNA was present on several pairs of men's underwear in the hamper
in Katz's bedroom.   His DNA was also found in Katz's vagina and
on her underwear, as well as on some bedding.   Defendant's DNA
also matched DNA taken from Katz's right hand nail clipping.
Phone records demonstrated that defendant's phone was located in
the area near Katz's house at certain times on December 25, 26,
27, 28, and 30.
            On December 30, after the police arrived at Katz's
house, Katz's friend called Warren to inform him of the police
activity.   Warren called Katz and sent her a text message, but he
did not go to the house.
            Before trial, the People moved to preclude defendant
from introducing evidence that Warren was the beneficiary of
Katz's $500,000 life insurance policy and from mentioning the
policy in his opening statement.   In response, defense counsel
argued that Warren "may have a motive" and "may be a person of
interest in the case."   He further argued that "other people"
might also have had a motive to kill Katz.


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           The trial court granted the People's motion, concluding
that defendant failed to reach the threshold to admit third-party
culpability evidence.   Stating that defendant could not "have it
both ways," the court noted that "it is not clear that
[defendant] is actually accusing [W]arren . . . of doing the
murder.   And that is an essential element of third-party
culpability."    The court left open the possibility that it could
change this ruling "depending on how the evidence [was] presented
throughout the trial" or if additional evidence came to light
supporting the contention.
           During trial, defense counsel repeatedly denied that he
was attempting to prove third-party culpability, insisting that
he was "not making an accusation yet," but "simply gathering the
facts" "to lay a foundation, in case I do want to make that
third-party accusation."   The court reiterated to defense counsel
that he must "make an offer of proof" demonstrating the
"relevance and materiality" of any proffered third-party
culpability evidence.   The court further stated that the evidence
could not be "speculative" or "misleading."
           Nevertheless, defense counsel continued his attempt to
"show that there is evidence in the case someone else could have
killed [Katz].   Anyone else," while insisting he was "not trying
to do third-party culpability."   Defense counsel's ambivalent
articulation of his strategy continued throughout the trial,
during which he represented to the court that he was "not


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accusing" Warren, implied that he might accuse defendant's
girlfriend, and also proffered that "other people could have"
committed the murder.
             Warren testified at the trial, but the court limited
defendant's cross-examination.    On direct examination, Warren
testified that Katz had asked him to move out of the house about
six months before the murder, but defendant was precluded from
exploring the reasons for the couple's separation.    The court
also limited inquiry into Warren's failure to check on Katz after
he noticed that the empty trash cans had not been retrieved and
into his reaction upon hearing of police activity at Katz's
house.   During cross-examination, Warren denied that he made a
statement to his sister that he could never forgive defendant if
it was true that defendant had engaged in a sexual relationship
with Katz.    The court prevented defendant from calling the sister
as a witness to refute Warren's denial.
             The jury found defendant guilty of murder in the first
degree and several other crimes, and defendant was sentenced to
life imprisonment without parole.    On defendant's appeal, the
Appellate Division affirmed (125 AD3d 1010 [2d Dept 2015]),
holding that the trial court "properly precluded . . . defendant
from presenting evidence of third-party culpability, since the
proposed evidence was based on mere speculation" (id. at 1012).
A Judge of this Court granted defendant leave to appeal (25 NY3d
1076 [2015]).    We affirm.


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           On appeal, defendant argues that New York's standard
for admitting third-party culpability evidence fails to
adequately protect a defendant's constitutional right to present
a complete defense.   The main thrust of defendant's argument at
trial was that the proffered third-party culpability evidence was
admissible under the Primo standard, not that the standard was
unconstitutional.   Nevertheless, defendant presented his
constitutional claim to the trial court, and the court rejected
it.   As such, defendant's constitutional argument is preserved
(see CPL 470.05 [2]), but, for the reasons that follow, is
without merit.
           As the Holmes Court acknowledged, states "have broad
latitude under the Constitution to establish rules excluding
evidence from criminal trials" (Holmes, 547 US at 324 [internal
quotation marks and citation omitted]).    That latitude is
limited, however, by the Fourteenth Amendment's Due Process
Clause and the Sixth Amendment's Compulsory Process and
Confrontation Clauses, which guarantee "criminal defendants a
meaningful opportunity to present a complete defense" (id.
[internal quotation marks and citation omitted]; see People v
Carroll, 95 NY2d 375, 385 [2000]).     A defendant's right to
present a defense "is abridged by evidence rules that infring[e]
upon a weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve"
(Holmes, 547 US at 324 [internal quotation marks and citation


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omitted]).
             In Holmes, the Supreme Court invalidated South
Carolina's rule precluding a defendant from introducing "proof of
third-party guilt if the prosecution ha[d] introduced forensic
evidence that, if believed, strongly support[ed] a guilty
verdict" on the ground that it violated a defendant's right to
have a meaningful opportunity to present a complete defense (id.
at 321).   In applying that rule, "the trial judge d[id] not focus
on the probative value or the potential adverse effects of
admitting the defense evidence of third-party guilt"; rather the
inquiry improperly focused on the strength of the prosecution's
case (id. at 329).    The South Carolina standard did not
rationally serve the justified end, namely "focus[ing] the trial
on the central issues by excluding evidence that has only a very
weak logical connection to the central issues" (id. at 330).
             While acknowledging that exclusion of defendant's
evidence under such a test is prohibited by the Constitution, the
Supreme Court affirmed that "well-established rules of evidence
permit trial judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice,
confusion of the issues, or potential to mislead the jury" (id.
at 326) and that a "specific application of this principle is
found in rules regulating the admission of evidence proffered by
criminal defendants to show that someone else committed the crime
with which they are charged" (id. at 327).


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          The standard articulated in Primo is fully consistent
with the Holmes principles discussed above.    Unlike the rule at
issue in Holmes, the standard clarified by this Court in Primo
focuses exclusively on the probative value of the third-party
culpability evidence as weighed against its potential
countervailing adverse effects.
          In Primo, we rejected the "clear link" articulation of
this standard that the Appellate Division apparently gleaned from
our decision in Greenfield v People (85 NY 75 [1881]), noting
that "[t]he Greenfield Court . . . said nothing to suggest that
it was fashioning a new or specialized test for evidence of
third-party culpability" (Primo, 96 NY2d at 354-355).
Accordingly, in Primo, we confirmed that no heightened standard
exists for admission of third-party culpability evidence; instead
admissibility of such evidence should be reviewed "under the
general balancing analysis that governs the admissibility of all
evidence" (id. at 356).   In other words, courts should "exclude
evidence of third-party culpability that has slight probative
value and strong potential for undue prejudice, delay and
confusion" (id. at 357) or where the evidence is so remote and
speculative that it does not sufficiently connect the third party
to the crime (see Holmes, 547 US at 327).     We have reaffirmed
this evidentiary standard in People v Negron (26 NY3d 262, 268
[2015]) and People v Schulz (4 NY3d 521, 528 [2005]).
          The Primo standard for third-party culpability evidence


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-- the general evidentiary balancing test -- does not infringe
upon a defendant's constitutional right to present a complete
defense.   As the Holmes Court noted, rules applying the standard
balancing test of prejudice versus probative value to proffers of
third-party culpability evidence are "widely accepted" (547 US at
327).   Requiring a defendant seeking to admit third-party
culpability evidence to establish that the probative value of
relevant evidence outweighs the appropriate countervailing
factors is neither arbitrary nor disproportionate to the purpose
of the rule.   Indeed, in this context, "the countervailing risks
of delay, prejudice and confusion are particularly acute" and
"[i]f those concerns were not weighed against the probative value
of evidence, the fact-finding process would break down under a
mass of speculation and conjecture" (Primo, 96 NY2d at 356-357).
           We review a trial court's determination concerning
admissibility of third-party culpability evidence under an abuse
of discretion standard (see Schulz, 4 NY3d at 529).   Here, the
trial court did not abuse its discretion by precluding
defendant's ambivalent offer of proof of third-party culpability.
Defendant repeatedly declined to accuse Warren of committing the
murder, proffering instead that the proof would show "someone
else could have killed [Katz]" or that "[defendant] is not the
only one who could have been there."   Given defendant's theory
for admission -- that others could have had access to Katz's home
or might have had reason to kill her -- the trial court did not


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abuse its discretion by precluding the proffered evidence (see
People v Gamble, 18 NY3d 386, 398-399 [2012] [speculative
assertions that other unidentified individuals had a motive to
harm a victim are insufficient to support admission of third-
party culpability evidence]).
          To be clear, admission of third-party culpability
evidence does not necessarily require a specific accusation that
an identified individual committed the crime.    For example, a
proffer of an unknown DNA profile may be sufficient.   And we
reject the trial court's assertion that such a specific
accusation "is an essential element of third-party culpability."
Such a requirement would conflict with the balancing analysis
that we announced in Primo and reaffirm today.    Nevertheless,
defense counsel's argument must be assessed based on the proffer
as articulated (see People v Collins, 109 AD3d 482, 482-483 [2d
Dept 2013], lv denied 23 NY3d 1019 [2014] [refusing to address on
appeal the defendant's new theory for admission of evidence]; cf.
People v Reed, 84 NY2d 945, 947 [1994] [refusing to address on
appeal the defendant's new theory for precluding admission of the
People's evidence]).   The trial court was within its discretion
in finding that proffer speculative and in determining the
evidence to support it would have caused undue delay, prejudice,
and confusion.
          During deliberations, the jury sent a note to the trial
court asking:    "If one inflicts a critical wound on a person and


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does not assist the person, does the not assisting satisfy the
question of intent to murder."     Upon such a request for
instruction, CPL 310.30 requires the court to "give such
requested information or instruction as the court deems proper."
The court must respond meaningfully to the request, but it is in
the best position to evaluate the jury's request and has
discretion in framing an appropriate response (see People v
Steinberg, 79 NY2d 673, 684 [1992]; People v Almodovar, 62 NY2d
126, 131-132 [1984]).    Here, contrary to defendant's assertion,
the court responded meaningfully to the jury's question.
            The trial court did not abuse its discretion by
prohibiting Warren's sister from testifying or precluding
evidence that a witness lied to parole office employees because
such extrinsic evidence could not be used to impeach the
witnesses on these collateral matters (see People v Knight, 80
NY2d 845, 847 [1992]).   Finally, defendant's claim that the
sentencing court improperly considered uncharged conduct when
imposing sentence is unpreserved for review.
            Accordingly, the Appellate Division order should be
affirmed.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *   *   *
Order affirmed. Opinion by Judge Garcia. Judges Pigott, Rivera,
Abdus-Salaam, Stein and Fahey concur. Chief Judge DiFiore took
no part.

Decided April 5, 2016



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