This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 19
The People &c.,
            Respondent,
        v.
Richard M. Leonard,
            Appellant.
(Appeal No. 1)
-----------------------
No. 20
The People &c.,
            Respondent,
        v.
Richard M. Leonard,
            Appellant.
(Appeal No. 2)

Case No. 19 and Case No. 20:
          Brian Shiffrin, for appellant.
          Robert J. Shoemaker, for respondent.



ABDUS-SALAAM, J.:
          Defendant was convicted of sexual abuse in the first
degree (Penal Law § 130.65 [2]) and unlawfully dealing with a
child in the first degree (Penal Law § 260.20) for serving
alcohol to an underage relative (hereinafter the victim) and then
sexually abusing her while she was intoxicated.   Defendant
appealed, and moved to vacate his conviction pursuant to Criminal


                               - 1 -
                               - 2 -                   Nos. 19 & 20

Procedure Law § 440.10.   On defendant's direct appeal, we hold
that the trial court erred in permitting the People to introduce
testimony from the victim about a prior incident in which
defendant allegedly sexually assaulted her in a similar manner,
because the evidence was not permissible for the People's
proffered Molineux purposes and, to the extent it was probative
for a limited purpose, the prejudicial nature of that evidence
far outweighed any probative value.    Therefore, we reverse the
Appellate Division order affirming the judgment and remit for a
new trial.   However, we affirm the Appellate Division's denial of
defendant's Criminal Procedure Law § 440.10 motion.    We therefore
affirm that Appellate Division order.


                                I.
          In October 2007, defendant was assaulted by the
victim's boyfriend.   Following his arrest, the boyfriend was
interviewed by a police officer, to whom he explained that he
assaulted defendant because he suspected that defendant had acted
in a sexually inappropriate manner with the victim.    During
questioning by the police officer, the victim stated that her
boyfriend attacked defendant because he thought that she had been
raped by defendant earlier that day, "but it was not true."     The
officer created an Incident Report in which he stated that the
boyfriend said he had assaulted defendant because while he was at
defendant's home earlier that day, he "believed that [defendant]


                               - 2 -
                                 - 3 -                 Nos. 19 & 20

was doing something inappropriate to [the victim]," but he
"didn't see anything specific."    In the boyfriend's Voluntary
Statement, he explained that while he and the victim were at
defendant's home, he was in the basement playing video games,
while the victim, who was intoxicated, lay passed out on an
upstairs couch.    The boyfriend said that he saw defendant
standing over the victim, and suspected that he was doing
something inappropriate to her.    After the boyfriend and the
victim left defendant's house, the boyfriend stated that the
victim informed him that defendant had raped her on a prior
occasion.
            Defendant was indicted for sexual abuse in the first
degree and unlawfully dealing with a child in the first degree
for giving the victim alcohol.    Prior to trial the prosecutor
filed a "Molineux Proffer" seeking to elicit testimony regarding
an alleged 2005 sexual abuse incident involving the same victim.
According to the victim, she fell asleep on a couch in her home
where defendant had been living after drinking alcohol provided
to her by defendant.    When she woke up, her pants were down and
defendant's fingers were inside her vagina.    The prosecutor
argued that this evidence was relevant to show intent, absence of
mistake, background, and common scheme or plan.    Over defendant's
objection, the court ruled that the People could elicit testimony
regarding the 2005 incident in their direct case.    The court did
not specify for which Molineux purpose the evidence was


                                 - 3 -
                                - 4 -                   Nos. 19 & 20

admissible or if it weighed the probative value of the evidence
against any potential prejudice to defendant.
            During trial, the boyfriend testified that in October
2007, he and the victim went to defendant's home where they all
drank alcoholic beverages.    Some time later, the victim passed
out in the bathroom and he and defendant carried her upstairs and
placed her on a couch.    The boyfriend and defendant then went
downstairs to play video games in the basement.    At some point,
defendant went upstairs while the boyfriend remained in the
basement.    The boyfriend testified that, from where he sat, he
could see defendant kneeling between the coffee table and couch
on which the victim was passed out.     He questioned defendant, who
responded that he was checking on the victim because he thought
she was going to vomit.    A few minutes later, he once again
observed defendant kneeling down in front of the victim, touching
her, after which, he ran upstairs where he saw defendant touching
the victim's vagina.    He shook the victim awake and they left.
            The victim also testified at trial.   Although she could
not remember the assault, she recalled her boyfriend waking her
up and noticed that her knees were open and her pants and
underwear were below her knees.    Pursuant to the court's Molineux
ruling, the victim testified that in 2005, she was drinking
alcohol provided by defendant and, when she later woke up on a
couch, defendant was touching her vagina.    She admitted that,
prior to the present case, she never told anyone of this alleged


                                - 4 -
                                - 5 -                   Nos. 19 & 20

sexual assault from 2005.
            Defendant testified on his own behalf, denying that he
supplied the victim and her boyfriend with alcohol.    He explained
that after the victim passed out in the bathroom, he and her
boyfriend put her on the couch, and the victim started vomiting
in the area between the sofa and coffee table.    Defendant
testified that he got a bowl in case she got sick again, which
she did.    The victim and her boyfriend left at about 4:00 a.m.
Defendant denied inappropriately touching the victim.
            The jury convicted defendant of sexual abuse in the
first degree and unlawfully dealing with a child in the first
degree, and he was sentenced to a term of three years and six
months in prison, with seven years of postrelease supervision.
            Defendant moved pro se to set aside his conviction
pursuant to Criminal Procedure Law § 440.10, raising ineffective
assistance of counsel and prosecutorial misconduct claims.
County Court denied the motion without a hearing, holding that
defendant's claims lacked merit.
            The Appellate Division considered both appeals
together, and affirmed both orders (129 AD3d 1592 [4th Dept
2015]).    With respect to the direct appeal, the court rejected
defendant's contention that the trial court erred in admitting
the Molineux evidence, concluding that the evidence of uncharged
crimes was admissible to establish intent and motive, and was
also admissible to provide necessary background information on


                                - 5 -
                               - 6 -                    Nos. 19 & 20

the nature of the relationship between defendant and the victim.
We disagree with the court's conclusion that the Molineux
evidence was permissible.


                               II.
          Under our well-established Molineux rule, "evidence of
a defendant's uncharged crimes or prior misconduct is not
admissible if it cannot logically be connected to some specific
material issue in the case, and tends only to demonstrate the
defendant's propensity to commit the crime charged" (People v
Cass, 18 NY3d 553, 559 [2012]).   Evidence of such crimes or prior
bad acts may be permissible for certain limited reasons; however,
the court may admit such evidence only after making the
discretionary determination that the probative value of the
evidence outweighs the potential for prejudice to the defendant
(see People v Alvino, 71 NY2d 233, 241 [1987]; People v Molineux,
168 NY 264 [1901]).   In People v Molineux, we identified a
non-exhaustive list of five exceptions or purposes, for which
uncharged crimes might be relevant, to show: (1) intent, (2)
motive, (3) knowledge, (4) common scheme or plan, or (5) identity
of the defendant.   Additionally, in People v Dorm, we explained
that prior uncharged crimes may also be used to "provide[]
necessary background information on the nature of the
relationship and place[] the charged conduct in context" (12 NY3d
16, 19 [2009]). "[E]ven if [the evidence is] technically relevant


                               - 6 -
                               - 7 -                   Nos. 19 & 20

for one of these or some other legitimate purpose, Molineux
evidence will not be admitted if it 'is actually of slight value
when compared to the possible prejudice to the accused'" (People
v Arafet, 13 NY3d 460, 465 [2009]).    As stated, evidence may not
be admitted to show that a defendant has a propensity to commit a
certain type of crime, as such evidence has no legitimate basis
for admission (see Alvino, 71 NY2d at 253).
           The victim's testimony here that defendant had
previously sexually assaulted her by getting her drunk is
propensity evidence, tending to show that defendant committed the
charged crime because he had done it before.   Contrary to the
People's argument and the lower courts' decisions, this evidence
was not necessary background information.   Background evidence is
admissible to show (1) the nature of the relationship and (2) to
provide context for the charged conduct (see Dorm, 12 NY3d at
19).   This exception is generally applicable where there is some
need to explain the victim's conduct or actions in relation to
defendant by illuminating the nature of their relationship, or
some need to flesh out the narrative so that there are no gaps in
the storyline provided to the jury (see People v Frankline, 27
NY3d 1113, 1115 [2016]; People v Leeson, 12 NY3d 823, 827
[2009]), or where the relationship itself provides a motive for
the defendant's criminal conduct (see Frankline, 27 NY3d at 1115;
People v Gamble, 18 NY3d 386, 398 [2012]; People v Till, 87 NY2d
835, 837 [1995]).   Here, however, the victim's testimony as to


                               - 7 -
                               - 8 -                     Nos. 19 & 20

the alleged prior sexual abuse was not necessary to show the
nature of the relationship between her and defendant or to "sort
out ambiguous but material facts" (People v Resek, 3 NY3d 385,
390 [2004]).   The victim testified as to her relationship with
defendant, stating that they are relatives who lived, at certain
times, in the same home and that on the night of the indicted
sexual assault, she and her boyfriend went to defendant's home to
spend time together and drink alcohol.   The introduction of the
prior alleged assault was not necessary to clarify their
relationship or to establish a narrative of the relevant events.
          Further, the evidence of the uncharged crime was not
admissible to show intent.   The intent here -- sexual
gratification -- can be inferred from the act.   "Evidence of
prior criminal acts to prove intent will often be unnecessary,
and therefore should be precluded even though marginally
relevant, where intent may be easily inferred from the commission
of the act itself" (People v Alvino, 71 NY2d at 242).      Such is
the case here, where defendant's alleged action of touching the
victim's vagina was plainly for sexual gratification and not an
"equivocal" act capable of being understood as "innocently or
inadvertently committed" (id. at 242-243).
          To the extent the evidence was admissible to show
defendant's motive in getting the victim drunk, the evidence was
highly prejudicial, as it showed that defendant had allegedly
engaged in the exact same behavior on a prior occasion with the


                               - 8 -
                                - 9 -                   Nos. 19 & 20

same victim -- classic propensity evidence.     The prejudicial
nature of the Molineux evidence far outweighed any probative
value that may be attributed to it.     Thus, to the extent the
trial court permitted this evidence to show motive, it abused its
discretion.    The error in admitting this evidence was not
harmless, as the evidence of defendant's guilt was based
principally on the boyfriend's testimony and was not
overwhelming; additionally, no limiting instruction was provided
regarding the permissible purposes for which the Molineux
evidence could be considered.
            Our reversal of defendant's conviction and remittal for
a new trial renders his ineffective assistance of counsel
arguments in his Criminal Procedure Law § 440.10 motion academic.
The remainder of his motion addressing his claim that the
prosecutor engaged in misconduct requiring dismissal of the
indictment was properly denied without a hearing.


                                 IV.
            Accordingly, on defendant's direct appeal, the
Appellate Division order should be reversed and a new trial
ordered, and the Appellate Division order affirming the denial of
defendant's Criminal Procedure Law § 440.10 motion should be
affirmed.




                                - 9 -
                             - 10 -                 Nos. 19 & 20

For Case No. 19: Order reversed and a new trial ordered.
Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges
Rivera, Stein, Fahey, Garcia and Wilson concur.
For Case No. 20: Order affirmed. Opinion by Judge Abdus-Salaam.
Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and
Wilson concur.

Decided March 28, 2017




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