This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 89
The People &c.,
            Respondent,
        v.
Lennie Frankline,
            Appellant.




          Allen Fallek, for appellant.
          Jordan K. Hummel, for respondent.




MEMORANDUM:
     The order of Appellate Division should be affirmed.
     Defendant Lennie Frankline challenges his conviction,
alleging that the victim’s testimony about his prior act of
violence against her, while generally admissible as nonpropensity
evidence, was prejudicially excessive in scope.   Given the trial

                              - 1 -
                               - 2 -                        No. 89

record, we conclude reversal is unwarranted.
     At defendant's trial on charges arising from his attempted
murder and assault of his former intimate partner, A.H., she
testified to an attack by defendant one week before the assault
at issue.   The court allowed this testimony as an exception to
the general prohibition on evidence of prior bad acts because it
served as background about A.H.’s relationship with defendant, as
well as proof of his intent and motive.1
     On the stand, A.H. recounted how she and defendant came to
live together, moved to Niagara County from New York City, and
that sometime later she decided to leave defendant.   However,
when she returned to their apartment to pick up her possessions,
defendant confronted her and words escalated to violence.   A.H.
described in detail how over the course of the next two to three
days defendant physically, mentally, and sexually abused her,
poured gasoline on her, and threatened to light her on fire.     She
eventually managed to escape, and reported the attack to the
police before returning with her mother to New York City.   A.H.
next described that approximately a week later, defendant broke
into her mother's home in New York City, and again beat her,


     1
      Although the minutes of the Molineux hearing are apparently
missing from the record, there is no dispute as to the court's
evidentiary determination. The court restated several times
during trial that its initial and continued ruling was that A.H.
could testify about the previous assault because it was
background, intent and motive evidence. Therefore, the record on
appeal is sufficient to permit our review of defendant's
challenge to the trial testimony.

                               - 2 -
                              - 3 -                            No. 89

doused her with gasoline, and attempted to ignite lighters in
front of her, until she was once again able to escape.
     The court provided the jury with three sets of limiting
instructions regarding this evidence; the first immediately
preceding A.H.'s testimony about the Niagara County attack, the
second at the conclusion of her testimony, and then once more
during the court's final jury charge.   Each time the court
informed the jury that the testimony concerning the Niagara
County attack was introduced solely to provide background
regarding the relationship between defendant and A.H., that the
People contended it was proof of defendant's intent and motive,
that the testimony was not evidence of defendant's propensity to
commit the crimes charged, nor sufficient to convict defendant of
those New York City crimes, and that the People had the burden to
prove beyond a reasonable doubt all elements of those charged
crimes.
     The jury convicted defendant of attempted murder in the
second degree (Penal Law §§ 110.00, 125.25), assault in the third
degree (Penal Law § 120.00 [1]), two counts of burglary in the
first degree (Penal Law §§ 140.30 [2], [3]), and endangering the
welfare of a child (Penal Law § 260.10 [1]).   The Appellate
Division affirmed (123 AD3d 504 [1st Dept 2014]), and a Judge of
this Court granted defendant leave to appeal (25 NY3d 1072
[2015]).   We now affirm.
     The People may not rely on prior bad acts as evidence of a


                              - 3 -
                               - 4 -                          No. 89

defendant's propensity to commit the crimes charged (People v
Molineux, 168 NY 264, 313 [1901]), but the evidence may be
admissible, as here, for background and to establish a
defendant's motive (id. at 297; see also People v Resek, 3 NY3d
385, 390 [2004]; People v Till, 87 NY2d 835, 837 [1995]).
Previous acts of intimate partner violence may be nonpropensity
evidence "probative of [a defendant's] motive and intent to
assault [the] victim" and which "provide[s] necessary background
information on the nature of the [defendant and victim's]
relationship" (People v Dorm, 12 NY3d 16, 19 [2009]).    "Where
there is a proper nonpropensity purpose, the decision whether to
admit evidence of defendant's prior bad acts rests upon the trial
court's discretionary balancing of probative value and unfair
prejudice" (id.).   A court's decision whether to admit the
evidence is reviewed for abuse of discretion (id.).   An error in
the court's ruling, however, may be deemed harmless where the
evidence of guilt is overwhelming and there is no significant
probability that the jury would have acquitted but for the error
(People v Crimmins, 36 NY2d 230, 241-242 [1975]).
     Defendant concedes that the testimony about the Niagara
County attack was admissible to show background and motive for
the New York City assault, but claims that he was denied a fair
trial because A.H.'s testimony was excessive and highly
inflammatory, making it impossible for the jury to fairly and




                               - 4 -
                                - 5 -                         No. 89

objectively assess the evidence of the New York City assault.2
Essentially defendant argues he was prejudiced by the court's
failure to limit the testimony to a summary discussion of the
Niagara County incident.
     Defendant relies on People v Stanard, wherein the Court
stated that lower courts must carefully monitor introduction of
background evidence and take every precaution "lest it spill over
its barriers and distort the jury's contemplation of the
determinative and critical evidence" (32 NY2d 143, 146 [1978]
[internal citation and quotation marks omitted]).   In Stanard,
the defendant was charged with perjury for lying to a grand jury
investigating police corruption in a division of the New York
City Police Department.    This Court held that the defendant was
entitled to a new trial because he was substantially prejudiced
by Patrolman Frank Serpico's extensive testimonial accounts
regarding numerous acts of corruption, which concerned specific
transactions unconnected and plainly irrelevant to the
defendant's alleged perjury.   As the Court explained, where the
background evidence is of such nature and amount that a court
cannot "state with any conviction that evidence heard by a jury


     2
      Defendant argued below that the testimony was inadmissible
to show his intent because intent was inferable from his conduct
during the New York City attack. Since defendant concedes, as
the Appellate Division concluded, that the evidence of the prior
assault was admissible as background and probative of defendant's
motive, we have no reason to opine on his claim that the
testimony should not have been admitted to show defendant's
intent. Moreover, such claim has no impact on our analysis.

                                - 5 -
                               - 6 -                         No. 89

is not prejudicial to a defendant," "any substantial doubt" on
where "to strike a neat balance between possible prejudice to the
defendant, and the indispensability of the challenged evidence to
the People's case . . . should weight the scales in favor of the
defendant" (id. at 147).   Thus, because Serpico's testimony did
not help the jury to understand the defendant's actions, and
instead "embroiled" him in general "reprehensible" police
corruption, it destroyed "the reasonable balance between the
claimed importance of this background evidence and its potential
for prejudicing the defendant's case" (id. at 145-147).   In light
of the impact of the testimony, the trial court's limiting
instructions did not cure the error, nor was the error harmless
given "the improper totality of the explanatory evidence which
substantially prejudiced defendant's right to a fair trial" (id.
at 147-148).
     We cannot say that both defects necessary for reversible
error are present in defendant's case, namely, that the trial
court abused its discretion by failing to limit A.H.'s testimony
and that such error substantially prejudiced the defendant so as
to foreclose a determination of harmlessness.   Unlike the
evidence in Stanard, here, A.H.'s testimony concerned the same
parties, and served the nonpropensity purpose of directly
explaining her relationship with the defendant and his motive.
This is far from a case where "the jury did not require a recital
of such a prologue to understand fully what had taken place in


                               - 6 -
                                 - 7 -                        No. 89

the defendant's encounters with [the victim]" (id. at 147).    In
the same vein, testimony that the defendant previously attacked
A.H. would not have led the jury to marginalize, relegate to the
background, or ignore the grievous nature of the New York City
assault, which was characterized by physical violence and several
failed attempts at immolation.
     Under these circumstances, we perceive no error that
requires a reversal of defendant's conviction.




                                 - 7 -
People v Lennie Frankline
No. 89




FAHEY, J.(concurring):
            The majority identifies two “defects necessary for
reversible error” in this case, namely, that the trial court
abused its discretion in failing to limit testimony that
defendant assaulted the victim approximately one week before the
instant crimes occurred, and that such error “substantially
prejudiced the defendant so as to foreclose a determination of
harmlessness” (majority op., at 6).     The majority also concludes
that both of those defects are not present here (see id.).    In
doing so, the majority has determined that the trial court erred
with respect to the volume of evidence it admitted pursuant to
People v Molineux (168 NY 264 [1901]), but that the misstep is
harmless.    I respectfully concur in the result only because, in
my view, the trial court did not abuse its discretion with
respect to the quantity of Molineux evidence that it admitted.
            The question whether to admit evidence of an uncharged
crime or crimes is answered by a familiar balancing test: if
evidence of an uncharged crime or crimes is relevant to an issue
other than a defendant’s criminal disposition, then it may be
admitted with proper limiting instructions upon a finding that
its probativeness outweighs its potential for prejudice (see


                                - 1 -
                               - 2 -                           No. 89

People v Morris, 21 NY3d 588, 594-596 [2013]).     “[T]he threshold
[task] of identifying a material issue to which the evidence is
relevant poses a question of law,” but “the balancing of
probative value against potential prejudice is a matter that lies
within the trial court’s discretion” (People v Israel, 26 NY3d
236, 243 [2015] [internal quotation marks omitted]).
          A question with respect to the volume of evidence of an
uncharged crime or crimes to be admitted is subject to the same
discretionary balancing of probative worth against prejudicial
threat (see generally People v Stanard, 32 NY2d 143, 146 [1973]).
Under the circumstances of this case, the trial court did not
abuse its discretion in admitting all of the victim’s testimony
with respect to the prior assault.     In this instance, the
extensive nature of the prior assault, in which the victim was
held against her will for over two days, required extensive
testimony from the victim, even for the limited purpose for which
that evidence was offered (cf. id. at 147).
          Moreover, that testimony was admitted in conjunction
with no less than three curative instructions, through which the
court scrupulously advised that such evidence was to be
considered for only two purposes: to explain the relationship
between defendant and the victim, and as proof of defendant’s
intent and motive.   Those instructions, which the jury is
presumed to have followed, offset any potential for prejudice
arising from the admission of the disputed testimony (see Morris,


                               - 2 -
                                  - 3 -                           No. 89

21 NY3d at 598).
            Consequently, for the foregoing reasons, I conclude
that the trial court did not abuse its discretion in admitting
the subject evidence, and I would affirm the Appellate Division
order without reference to the harmless error doctrine.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Pigott, Rivera and Abdus-Salaam concur. Judge Fahey concurs in
result in a separate concurring opinion in which Judges Stein and
Garcia concur.

Decided June 9, 2016




                                  - 3 -
