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

318
KA 15-01507
PRESENT: SMITH, J.P., LINDLEY, CURRAN, AND TROUTMAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RONALD MEADOW, DEFENDANT-APPELLANT.


LAW OFFICES OF ANDREW J. FRISCH, NEW YORK CITY (ANDREW J. FRISCH OF
COUNSEL), AND CUTI HECKER WANG LLP, FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Anthony F.
Aloi, J.), rendered December 12, 2014. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of murder in the second degree (Penal Law § 125.25 [1]),
defendant contends that County Court erred in admitting hearsay
testimony from multiple prosecution witnesses, thereby depriving him
of a fair trial. The witnesses in question testified to statements
the victim made to them concerning defendant’s prior violent and
threatening behavior toward the victim. We agree with defendant that
the court erred in allowing that testimony over his objection, and we
therefore grant defendant a new trial.

     On March 6, 1985, the victim’s body was found face-first on the
floor of her Syracuse apartment with her hands tied behind her back
and a cloth belt around her neck. The Medical Examiner determined
that she had been strangled to death sometime between 7:00 p.m. on
March 4, 1985 and 3:10 a.m. the next morning. Although the apartment
had been ransacked, there were no signs of a forced entry, and the
victim had not been sexually assaulted. The police questioned several
suspects, including defendant, the victim’s estranged husband. The
couple had separated approximately six months earlier and, according
to several of the victim’s friends and relatives, the victim said that
defendant had beaten her in the past and threatened to kill her.
Defendant denied killing the victim and offered an alibi. The
investigation thereafter stalled, and defendant moved to Georgia.

     Although the police continued to view defendant as a suspect, he
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was not arrested until nearly 30 years later, after a Y-STR DNA
analysis was performed on a small amount of DNA material found under
the victim’s fingernails, which had been clipped and preserved during
the autopsy. The DNA expert who conducted the testing concluded that
defendant’s Y-STR profile was consistent with the DNA found under the
victim’s fingernails, and that neither defendant nor any of his
paternal relatives could be excluded as the source of the DNA.
According to the expert, one in every 4,600 males chosen at random
would have Y-STR DNA consistent with that found under the victim’s
fingernails. Based on the new evidence, defendant was returned to
Syracuse from Georgia and charged with murder in the second degree.

     Prior to trial, defendant moved in limine to preclude the People
from calling various witnesses to testify that the victim had told
them that defendant had beaten her in the past and threatened to kill
her. According to defendant, such testimony was not admissible under
People v Molineux (168 NY 264), and, in any event, constituted
inadmissible hearsay. In response, the People argued that the
evidence was relevant to “defendant’s intent, motive, and identity as
[the] killer,” and it was admissible because it would “provide the
jury with background information regarding the strife-ridden
relationship between defendant and the victim.” With respect to
defendant’s hearsay contention, the People asserted that the evidence
was admissible under the “state of mind exception” to the rule against
hearsay. Following a hearing, the court denied defendant’s motion in
limine, ruling that “in a domestic violence type of case, or other
cases for that matter, that kind of testimony is allowable if it’s
relevant to the issue of intent, motive, [or] identity.”

     During the trial, consistent with the court’s ruling, the
victim’s aunt testified that the victim told her in 1979—six years
before the murder—that defendant “handcuffed her to a chair and left
her there for a little while because he didn’t want her to go or do
something.” The victim’s sister testified that she, too, heard the
victim say that defendant had handcuffed her. The sister further
testified that the victim told her two or three times that defendant
had beaten her, and that the victim also said that she was having
trouble sleeping because defendant “had threatened to kill her if she
didn’t come back to him.” Finally, a friend of the victim testified
that the victim told her over dinner one night that defendant had
threatened to kill her.

     Defendant repeatedly objected to the above testimony on hearsay
grounds, among others, but the court overruled the objections. The
court instructed the jurors, however, that the “evidence was not
offered and it is not allowed by this Court and must not be considered
for the purpose of proving that the defendant, Ron Meadow, had the
propensity or predisposition to commit the crimes charged in this
case.” The court repeated that instruction each time it overruled
defendant’s hearsay objections. During the charge conference, defense
counsel asked the court to instruct the jury that it should not
consider the victim’s out-of-court statements regarding defendant’s
prior bad acts for the truth of the matters asserted therein. The
People opposed the request, and the court denied it. After
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                                                         KA 15-01507

deliberating for more than six hours, the jury convicted defendant of
intentional murder, and the court later sentenced him to 25 years to
life in prison.

     As a preliminary matter, we reject the People’s contention that
defendant failed to preserve his hearsay contention for our review.
As noted, defendant moved in limine to preclude the subject testimony
on hearsay grounds, and then objected to the testimony at trial on
that same ground. Defendant thereby afforded the court ample
“opportunity to correct any error in the proceedings below at a time
when the issue can be dealt with most effectively” (People v Lopez, 71
NY2d 662, 665; see CPL 470.05 [2]).

     With respect to the merits, it is well settled that “[o]ut-of-
court statements offered for the truth of the matters they assert are
hearsay and ‘may be received in evidence only if they fall within one
of the recognized exceptions to the hearsay rule, and then only if the
proponent demonstrates that the evidence is reliable’ ” (Nucci v
Proper, 95 NY2d 597, 602, quoting People v Brensic, 70 NY2d 9, 14).
Here, there is no dispute that the statements of the victim at issue
were made out of court, and the People do not contend that an
exception to the hearsay rule applies. Instead, the People contend
that the statements are not hearsay because they were not offered for
the truth of the matters asserted therein. We reject that contention.
In our view, the statements were offered to establish that defendant
had, in fact, physically abused the victim and threatened to kill her.
Indeed, when defense counsel asked the court to instruct the jury that
the statements should not be considered for the truth of the matters
asserted, the People opposed the request, and the court denied it.
Moreover, during his opening and closing statements, the prosecutor
used the statements for the truth of the matters asserted. For
example, the prosecutor asserted that, following her separation from
defendant, the victim “began to disclose certain things to members of
her family. Things that she had kept to herself for a number of
years. She began to talk about the beatings that she suffered from
this defendant. The controlling behavior and conduct that he
exhibited. And when she finally got her freedom and an apartment of
her own and was anxiously awaiting the start of her life, she finally
disclosed that, in fact, on more than one occasion the defendant had
threatened to kill her” (emphasis added). Similarly, during his
summation, the prosecutor stated that “[t]he man who did it was the
man who said that he was going to do it.” As the statements of the
prosecutor illustrate, he assumed the truth of the statements
attributed to the victim and used them to argue that defendant
committed the murder.

     In addition, we note that the court, in its final instructions to
the jury, stated that there was “evidence in this case that the
defendant made certain alleged threats to kill his wife during the
marriage and that he had restrained her by tying her or handcuffing
her, and there has been other testimony as well regarding and
describing the nature of the relationship during the marriage.” That
instruction suggested to the jury that the hearsay statements at issue
were offered for the truth of the matters asserted therein. Although
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the court instructed the jurors that such evidence “was not offered
and must not be considered for the purpose of proving that the
defendant had a propensity or predisposition to commit the crime of
murder in the second degree,” that did not address the hearsay
problem. Again, the court refused to instruct the jury that it should
not consider the subject hearsay statements for the truth of the
matters asserted.

     Citing Molineux and other like cases, including People v Alvino
(71 NY2d 233), the People argue that evidence of defendant’s prior
threats and physical abuse of the victim were highly relevant for
various nonhearsay purposes, such as establishing background
information, revealing the state of mind of the victim and defendant,
and demonstrating his motive and intent to kill the victim. As
defendant correctly points out, however, there is no Molineux
exception to the rule against hearsay. It may be true that evidence
that defendant beat and threatened to kill the victim is admissible
under a Molineux theory, but such evidence must still be in admissible
form. For instance, a witness could testify that he or she witnessed
defendant assault the victim, or heard defendant threaten the victim.
That is not hearsay. It is hearsay, however, for a witness to testify
that someone else told him or her that defendant beat or threatened
the victim.

     The People rely on People v Bierenbaum (301 AD2d 119, lv denied
99 NY2d 626), where, as one trial court has noted, the First
Department “essentially creates or recognizes an exception to the
hearsay rule which would permit hearsay evidence in domestic violence
prosecutions as ‘background information’ ” (People v Harris, 15 Misc
3d 994, 1003). Neither we nor the Court of Appeals has recognized a
so-called “background exception” to the hearsay rule in criminal cases
arising out of incidents of domestic violence, and we decline to do so
here. In fact, Bierenbaum appears to be inconsistent with People v
Maher (89 NY2d 456). In that case, the defendant was charged with
killing his estranged paramour and the trial court permitted
prosecution witnesses to testify about statements made to them by the
victim concerning the defendant’s violent and threatening behavior.
The Court of Appeals held that the testimony regarding the victim’s
out-of-court statements constituted inadmissible hearsay. Relying on
Maher, we reached a similar conclusion in People v Harvey (270 AD2d
959, lv denied 95 NY2d 835, lv dismissed 95 NY2d 853), ruling that
“the court erred in permitting the People to introduce the statements
of decedent to third parties that on previous occasions defendant
physically abused her” (id. at 960). We perceive no reason in the
record to reach a different conclusion here.

     The question thus becomes whether the error was harmless. “Under
the standard applicable to nonconstitutional errors, an error is
harmless if the proof of defendant’s guilt is overwhelming and there
is no significant probability that the jury would have acquitted
defendant had the error not occurred” (People v Williams, 25 NY3d 185,
194; see People v Crimmins, 36 NY2d 230, 242). Here, it cannot be
said that the proof of guilt was overwhelming. There were no
eyewitnesses, and defendant, when interrogated at length by the
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                                                         KA 15-01507

police, consistently denied his guilt. Although defendant admitted to
the police that he had physically abused the victim at times during
the marriage, he did not admit to having threatened to kill her. We
note that the police did not arrest defendant until almost 30 years
after the murder was committed, evidently concluding that there was
not enough evidence to charge him. The only new evidence that the
police had when defendant was arrested were the DNA test results,
which, although incriminating, do not constitute conclusive proof of
guilt. In any event, even assuming, arguendo, that the proof of guilt
is overwhelming, we cannot conclude that there is no significant
probability that the verdict would have been different if the jury had
not learned that defendant had threatened to kill the victim. We
therefore reverse the judgment and grant a new trial.

     We have reviewed defendant’s remaining contention and conclude
that it lacks merit.




Entered:   June 10, 2016                        Frances E. Cafarell
                                                Clerk of the Court
