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

179
KA 12-01632
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

FRANK ARENA, DEFENDANT-APPELLANT.


SCHIANO LAW OFFICE, P.C., ROCHESTER (MICHAEL P. SCHIANO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 1, 2011. The judgment
convicted defendant, upon a jury verdict, of burglary in the first
degree, robbery in the first degree, robbery in the second degree and
assault in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of robbery in first degree (Penal Law § 160.15
[3]), robbery in the second degree (§ 160.10 [1]), assault in the
second degree (§ 120.05 [6]), and burglary in the first degree (§
140.30 [3]). Viewing the evidence in light of the elements of the
crimes as charged to the jury (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). We agree with defendant, however, that Supreme Court erred in
refusing to allow him to call a defense witness at trial. We
therefore reverse the judgment of conviction and grant defendant a new
trial.

     Defendant and his codefendant were charged with beating the
victim and forcibly stealing property from him. Those crimes were
committed on May 2, 2010. According to the People, defendant’s motive
was to retaliate against the victim for informing the police, in an
anonymous 911 call on April 18, 2010, that defendant was growing
marihuana in his house. Prior to trial, the court granted the
People’s motion to admit Molineux evidence to that effect (see People
v Molineux, 168 NY 264, 293-294). During the prosecutor’s opening
statement, she referred repeatedly to defendant’s alleged motive for
revenge, and evidence of that motive was admitted on the People’s
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                                                         KA 12-01632

direct case. After the People rested, defense counsel sought to call
a witness (hereafter, proposed witness) who was on the witness list
submitted to the court by defendant prior to voir dire. The
prosecutor asked for an offer of proof, asserting that the anticipated
testimony of the proposed witness was “tangential to the issues here.”
In response, defense counsel stated that the proposed witness intended
to testify that on April 18, 2010 — the same day on which defendant
was arrested on the marihuana charge — defendant accused the proposed
witness of being the informant but did not assault or threaten him.
The court precluded the proposed witness from taking the stand, ruling
that his proposed testimony was “not relevant to the issues presented
to this jury, namely what, if anything, occurred on May 2, 2010,” when
defendant allegedly assaulted and robbed the victim. Defense counsel
objected to the court’s ruling and, after defendant testified and
called several other witnesses, the jury rendered a guilty verdict on
all counts.

     It is well settled that “a defendant’s ‘right to present his own
witnesses to establish a defense . . . is a fundamental element of due
process of law’ ” (People v Williams, 81 NY2d 303, 312, quoting
Washington v Texas, 388 US 14, 19). In fact, “[f]ew rights are more
fundamental than that of an accused to present witnesses in his [or
her] own defense” (Chambers v Mississippi, 410 US 284, 302). Thus,
the testimony of a defense witness should not be prospectively
excluded unless the offer of such proof is palpably in bad faith (see
People v Gilliam, 37 NY2d 722, revg on dissenting op of Hopkins, J.,
45 AD2d 744, 745; People v Wilkerson, 294 AD2d 298, 299, lv denied 98
NY2d 772). Instead, courts upon proper objection should “rule on the
admissibility of the evidence offered” (Gilliam, 45 AD2d at 745).

     Here, the People do not suggest that the testimony of the
proposed witness was offered in bad faith, and the court did not make
such a finding at trial. Indeed, there is no basis in the record for
concluding that the offer of proof was palpably in bad faith. The
court therefore should have allowed the proposed witness to testify,
whereupon the prosecutor could object to any testimony she deemed
inadmissible or improper.

     In any event, contrary to the People’s contention and the court’s
determination, the proposed testimony was not inadmissible on
relevancy grounds. As a general rule, “[e]vidence is relevant if it
has any tendency in reason to prove the existence of any material
fact, i.e., it makes determination of the action more probable or less
probable than it would be without the evidence” (People v Scarola, 71
NY2d 769, 777). The proposed testimony was relevant to the issue of
motive, as posited by the People. Having allowed the People to admit
Molineux evidence regarding defendant’s motive for revenge against the
victim, the court should not have prohibited defendant from calling a
witness whose testimony, if believed, may have tended to make the
People’s theory of motive less probable than it would be without the
proffered testimony (see generally id.).

     Finally, the People contend in the alternative that the court’s
ruling was proper because the proposed testimony constituted
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                                                         KA 12-01632

inadmissible hearsay. Even if we were to agree with that contention,
which we do not, we could not affirm the judgment on that basis
because the court did not preclude the proposed witness from
testifying on hearsay grounds and our review is limited to the ground
relied upon by the court (see People v Concepcion, 17 NY3d 192, 194-
195; People v LaFontaine, 92 NY2d 470, 473-474, rearg denied 93 NY2d
849).

     All concur except SCUDDER, P.J., and MARTOCHE, J., who dissent and
vote to affirm in the following Memorandum: We respectfully dissent
because we cannot agree with the majority that Supreme Court committed
reversible error in refusing to allow defendant to call a defense
witness whose testimony was, according to defendant, relevant on the
issue of motive. While we recognize the constitutional right of a
defendant to present a defense, including presenting his or her own
witnesses (see People v Williams, 81 NY2d 303, 312), a defendant does
not have an unfettered right to offer testimony that is incompetent,
privileged or otherwise inadmissible under the rules of evidence (see
People v Hayes, 17 NY3d 46, 53, cert denied ___ US ___, 132 S Ct 844).
The mere invocation of the right to offer testimony cannot
automatically and invariably outweigh countervailing public interests
(see Taylor v Illinois, 484 US 400, 414-415, reh denied 485 US 983).
Such interests include whether the probative value of the evidence “is
outweighed by the danger that its admission would confuse the main
issue and mislead the jury” (People v McKinley, 72 AD2d 470, 474; see
People v Harris, 209 NY 70, 82). Here, the court concluded that the
testimony would not be relevant to the issues at trial. We agree with
that conclusion. The proffered testimony that defendant contacted
another person suspected of giving information to the police about him
two weeks before the incident in question and did not assault that
person is not relevant to the issue whether defendant assaulted the
victim in this case. Indeed, in our view the connection of the
proffered testimony to the alleged assault was “neither apparent nor
logical on its face” (Williams, 81 NY2d at 315). We further conclude
that the witness’ proffered testimony was “not highly relevant and
exculpatory” (People v Cummings, 191 AD2d 1012, 1013) but, rather, it
was “ ‘too . . . remote[] or conjectural to have any legitimate
influence in determining the fact[s] in issue’ ” (People v Barnes, 109
AD2d 179, 184). Thus, in our view, the court did not err in refusing
to allow defendant’s proposed witness to testify.




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
