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

639
KA 10-02418
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY BREWER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BRIAN SHIFFRIN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered October 4, 2010. The judgment
convicted defendant, upon a jury verdict, of predatory sexual assault
against a child (two counts) and sexual abuse in the first degree (two
counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him, following
a jury trial, of two counts each of predatory sexual assault against a
child (Penal Law § 130.96) and sexual abuse in the first degree (§
130.65 [3]), defendant contends that Supreme Court erred in allowing
his former girlfriend (hereafter, witness) to testify at trial
regarding the peculiar manner in which the couple engaged in
consensual oral sex. We reject that contention. The charges arose
from allegations that defendant, among other things, forced the two
victims, ages nine and seven, to perform oral sex on him inside his
apartment. The victims were the daughters of the witness, who lived
with defendant at the time. One of the victims alleged that, while
she performed oral sex on defendant, he was smoking crack cocaine and
had his T-shirt pulled over his head. The other victim alleged that
she was forced to perform oral sex on defendant in his bedroom closet,
which he referred to as the “bat cave.”

     Prior to trial, the People filed a written “Molineux Proffer”
seeking permission from the court to admit direct evidence at trial
regarding defendant’s frequent use of crack cocaine in the home, and
his “unique habit of pulling his t-shirt over his head and securing it
behind his neck, then zipping down his pants and receiving oral sex”
while he smoked crack cocaine. According to the People, defendant
engaged in such conduct with several women, including the witness, who
                                 -2-                           639
                                                         KA 10-02418

was prepared to testify to that effect at trial. Defense counsel
opposed the application on the ground that the evidence was more
prejudicial than probative. The court granted the application without
explanation, and the witness subsequently testified at trial that she
frequently performed oral sex on defendant in the “bat cave” while he
smoked crack cocaine and had his T-shirt pulled over his head. She
further testified that she witnessed defendant engaging in that same
conduct in the “bat cave” with another woman. According to the
witness, the victims were not allowed in defendant’s bedroom, and
therefore could not see any of the sexual activity taking place there
or in the adjacent closet. Defendant testified at trial and denied
the allegations. He acknowledged, however, that he had been addicted
to crack cocaine, and that he sometimes smoked it in the “bat cave”
while receiving oral sex with his T-shirt pulled over his head. The
jury rendered a guilty verdict on all four counts of the indictment.

     It is well settled that “evidence of uncharged crimes is
inadmissible where its purpose is only to show a defendant’s bad
character or propensity towards crime” (People v Morris, 21 NY3d 588,
594 [emphasis added]). Stated otherwise, the rule is that, “if the
only purpose of the evidence is to show bad character or propensity
towards crime, it is not admissible” (People v Alvino, 71 NY2d 233,
241). Here, as a preliminary matter, we note that evidence of
defendant’s so-called “sexual proclivities” does not constitute
Molineux evidence because it was neither a crime nor a prior bad act
for him to receive consensual oral sex from an adult in a closet with
his T-shirt pulled over his head. The only evidence of an uncharged
crime or prior bad act concerned defendant’s use of crack cocaine,
which was not overly prejudicial to him in the overall context of the
trial given that he was not charged with any drug offenses. In any
event, the evidence was not proffered only to show defendant’s bad
character or propensity toward crime; rather, the stated purpose of
the evidence was to corroborate details of the victims’ testimony. As
the prosecutor argued in her summation, the victims would not likely
know of defendant’s sexual proclivities unless they were sexually
abused by him.

     To the extent that defendant contends that the evidence is
inadmissible on relevancy grounds, that contention is unpreserved for
our review (see CPL 470.05 [2]). In any event, we reject that
contention. “Evidence 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). Here, the
evidence was relevant because, as noted, it tended to show that the
victims were abused in the manner they alleged.

     We have reviewed defendant’s remaining contentions and conclude
that they lack merit.


Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
