People v. Streitferdt

Murphy, P. J. (concurring in part and dissenting in part).

Although I agree with the majority that the trial court’s failure to permit the defendant to present witnesses to testify as to the complainants’ reputations in the community for truthfulness constitutes a sufficient predicate for reversal (People v Pavao, 59 NY2d 282), I cannot agree with the majority that the defendant’s motion for severance was properly denied.

As is set forth more fully in Justice Rosenberger’s opinion, this was a case in which three complainants alleged that they had separately been the victims of various sex offenses committed by the defendant. The earliest of these offenses was said to have occurred in May of 1985 and the latest in February of 1987. The authorities, however, received no report of any offense until March 1988 when one of the complainants made widely publicized allegations against the defendant; the two other complainants made their allegations a short time later. At the time of the alleged incidents all of the complainants were members of The True Church of God, the religious organization over which the defendant presided as pastor; by the time of their criminal complaints, however, all of the complainants had been expelled or "disfellowshipped”. It is clear that the complainants knew of each others’ allegations and, on occasion, socialized as members of a group of "disfellowshipped” congregants. The complainants uniformly alleged that they had been sexually assaulted in varying degrees by the defendant in the defendant’s office at the church. Their accounts of the defendant’s behavior, and particularly of his statements during his commission of the alleged offenses were remarkably similar and in some respects identical.

The charges of all three complainants were joined in a single indictment which, by the time of trial, contained six counts. Although the charges were properly joined pursuant to CPL 200.20 (2) (c) which provides that offenses are joinable when they are "defined by the same or similar statutory provisions and consequently are the same or similar in law”, it is clear that counts joined under this paragraph may still be severed pursuant to CPL 200.20 (3) which provides that "[I]n any case where two or more offenses or groups of offenses charged in an indictment are based upon different criminal transactions, and where their joinability rests solely upon the fact that such offenses, or as the case may be at least one offense of each group, are the same or similar in law, as prescribed in paragraph (c) of subdivision two, the court, in the interest of justice and for good cause shown, may, upon application of either a defendant or the people, in its discretion order that any such offenses be tried separately from the other or others thereof.”

It is clear that the reason for providing for the severability of counts joined pursuant to CPL 200.20 (2) (c) is that the offenses joined under that authority, by hypothesis, do not arise out of the same facts and are not provable by the same facts. Their joinder then, solely by reason of their legal similarity, raises the possibility that the jury will be exposed to proof of numerous offenses, which although factually distinct, may seem similar because they are of the same legal type, involve the same defendant and because they may on occasion actually be quite similar in the details of their commission. There will, in these circumstances, doubtless be cases in which the jury will- find it difficult to keep the evidence relevant to each count properly segregated. Indeed, there will be situations in which the jury will be sorely tempted to view the evidence offered upon the various counts cumulatively and to convict not upon the evidence relevant to each count but upon the perception generated by the entire body of evidence that the defendant is generally prone to the commission of the sort of offenses charged.

It is very basic that a defendant may not be convicted of one crime based on evidence of other crimes showing no more than an apparent propensity to engage in a particular kind of criminal behavior (People v Molineux, 168 NY 264, 291-293; People v Alvino, 71 NY2d 233, 241). And, it is precisely to avoid such convictions, the danger of which may be considerably heightened by joinder pursuant to CPL 200.20 (2) (c), that CPL 200.20 (3) provides for the severance of counts so joined. It is, of course, true that the decision as to whether severance ought to be granted is left to the trial court’s discretion. A court’s exercise of discretion in this area, however, is reviewable. The basic considerations were outlined by Judge Wachtler writing for the Court of Appeals in People v Lane (56 NY2d 1, 8): "Trial courts should generally weigh the public interest in avoiding duplicative, lengthy and expensive trials against the defendant’s interest in being protected from unfair disadvantage. While the trial courts must be afforded reasonable latitude in exercising discretion in these matters, we emphasize that compromise of a defendant’s fundamental right to a fair trial free of undue prejudice as the quid pro quo for the mere expeditious disposition of criminal cases will not be tolerated”.

It would seem plain that in the present case the defendant’s fundamental right to a fair trial was impermissibly compromised by the denial of severance. The entire case against the defendant lay in the testimony of the complainants as to what they had suffered. The defense was quite simply that the alleged offenses had never occurred. Thus, as the majority has recognized "credibility was the central issue”. In this context, it was enormously prejudicial to allow the allegations of each of the three complainant’s to be placed before the same jury. The picture which emerged from the complainants’ combined testimony was one of a religious leader who had over a 21-month period repeatedly abused his spiritual and moral authority to prey sexually on the women of his congregation. As noted, all of the attacks upon the complainants were said to have occurred in the defendant’s church office and to have been marked by similar, if not identical, behavior and statements; particularly notable were the complainants’ reports of the defendant’s use of racial epithets, his explanations of his conduct as fulfilling a "fatherly duty” and providing a "sexual release”, and his repeated idiomatic references to his anatomical superiority. The danger that the jury would convict on each count based on this entire body of evidence, the cumulative effect of which was to depict a man characteristically prone to sexual depredation and possessed of a vengeful and otherwise abusive disposition would have been overwhelming.

Contrary to the People’s appellate arguments, there is no evidentiary theory which would have permitted the jury to consider the testimony of more than one of the complainants as probative of any single count of the indictment. Thus, had severance been granted segregating the counts relating to each complainant from the remaining counts, the evidence of defendant’s extensive career of sexual assaults upon his congregants would never have come to the jury’s attention. The danger then of a guilty verdict based on evidence of other crimes, would have been effectively avoided.

Joinder, particularly joinder pursuant to CPL 200.20 (2) (c), cannot be permitted to be used as a device to circumvent the general prohibition against proving one crime by introducing evidence of the defendant’s commission of others. If evidence of the various offenses with which the defendant was charged had been material and admissible upon each count of the indictment pursuant to one of the exceptions to the general rule against evidence of other crimes (see, People v Molineux, supra, at 293), joinder would have been accomplished pursuant to CPL 200.20 (2) (b) rather than 200.20 (2) (c). CPL 200.20 (2) (b), of course, provides specifically that offenses are joinable when "proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first”. Joinder pursuant to CPL 200.20 (2) (c), on the other hand, which is what we deal with here, is appropriate only when the offenses to be joined are "not joinable pursuant to paragraph (b)” (CPL 200.20 [2] [c]; see also, CPL 200.20 [3]). Indeed, defendant’s entire trial was conducted, at least in theory, upon the understanding that the joinder of the counts had no evidentiary justification, but had been permitted solely in the interests of judicial economy and prosecutorial convenience. The court’s charge which the People cite approvingly instructed:

"[t]he People have joined a number of separate incidents in one indictment. The indictments are joined for convenience and in the interest of judicial economy. Bear in mind that each of the charges which I am submitting to you alleges a separate crime. The fact that the defendant is charged with one crime is not evidence that he committed another crime also charged.

"Therefore, you are required to separate in your minds the evidence applicable to each of the crimes and to return a verdict on each crime alleged, based solely on the evidence applicable to that crime. You are to treat this case as three separate trials.”

Having proceeded on this basis without objection to this point, it is rather late in time for the People to contend as they do in their appellate argument that joinder pursuant to CPL 200.20 (2) (b), which they term "Molineux joinder”, would have been permissible. In any event, it would not have been permissible.

Although the People now urge that the testimony of all three complainants might have been admitted in proof of each offense to rebut what they freely characterize as the defendant’s claim that the complainants were mistaken in their perception of his behavior, it is absolutely clear that no such claim was made by the defendant. As noted, the defense was quite simply that the sexual assaults alleged by the complainants had never occurred; indeed, assuming that the assaults had occurred as alleged there was no viable defense that they had been innocently performed, except perhaps that the victims capable of consenting had done so, but consent was not raised as a defense at trial.

In the end it is the People in their belated attempt to demonstrate the availability of "Molineux joinder” who most accurately capture the dynamic of the other crimes evidence in this case: "these sexual acts [the defendant’s] each bore the distinct oddities of defendant’s criminal signature and the mere repetition of them negated the likelihood (pressed ardently by defendant at trial) that none of them happened at all.” Of course, once it is admitted that an act has been repeated, it goes without saying that the act has occurred, not merely once, but at least twice. This, however, puts the cart before the horse, for the proper question for the jury in its consideration of each count was not whether the defendant, having committed some of the offenses with which he was charged, was likely to have committed others, but whether he had committed any offense at all. Contrary to the People’s assertion, a defendant’s commission of other similar offenses, even if independently established, does not logically make it more likely that the offense to be proved has in fact been committed by the defendant (see, 1A Wigmore, Evidence § 55.1, at 1160 [Tillers rev ed]). That likelihood may only be said to increase if the other crimes evidence is received as evidence of the defendant’s propensity (ibid.) and that is exactly what Molineux and its progeny (see, e.g., People v Crandall, 67 NY2d 111, 118; People v Hudy, 73 NY2d 40, 54-55) prohibit.

The great difficulty with this case is that despite the trial court’s above-quoted admirably clear instructions as to the separate relevance of each of the complainants’ evidence, it is an exercise in pure fiction to suppose that the jury would not have considered the evidence in precisely the manner suggested by the People, namely, that because the defendant had repeatedly committed sexual assaults upon the women of his congregation the likelihood was that he was predisposed to do so and had done so on each of the occasions charged. Even the prosecutrix found it all but impossible to refrain from viewing the counts in isolation, and in her summation repeatedly sought to buttress the credibility of her witnesses by highlighting the similarity of their accounts—by arguing in essence that the complainants must be telling the truth because the things to which they attested were just the sort of things that the defendant did. A few examples will suffice:

"And just as he had tried with Ms. Campbell, defendant tried to tell her [Kerry Heron] that he was just being fatherly; that he didn’t mean to hurt her * * *

"[With regard to Karen Hart] * * * [a]nd then the defendant, just as he had with Ms. Campbell, steered the conversation to sex * * *

"You heard that he began talking to her repetitiously, saying the same things over and over again, just as he had with Ms. Heron * * *

"He penetrated her [i.e., Karen Hart] again, talking all the time the same way he had with Kerry Heron; the same way he had with Elaine Campbell when he kept telling Ms. Campbell Took up in my face; look up in my face.’ To Ms. Hart he was saying 'you know you like this’. He used racial epithets with her and when he withdrew he told Ms. Hart Tick my penis’. He grabbed her head and pushed her down on him, boasting again, as he had to Ms. Heron, about how large he was and how she had never guessed he was so big by seeing him up on the pulpit”.

Finally, in a rather blatant invitation to consider all of the incidents together, the prosecutrix unveiled the following theory to the jury: "[N]ow in feudal times, the lord of the land exercised what was known as droit de seigneur ius primum, first night rights. In this case, I submit that is a common thread that runs through all three incidents.”

The temptation to this sort of argument and the concomitant risk of convictions based upon highly prejudicial evidence of other crimes which should never have been considered by the jury, ought to have been removed at the outset by means of severance. It is hard to imagine a case in which the court’s discretion to sever pursuant to CPL 200.20 (3) would have been more appropriately exercised or one in which the failure to do so would more sharply compromise a defendant’s fundamental right to a fair trial free of undue prejudice.

Accordingly, while I agree that a reversal of the defendant’s convictions is required for the reasons set forth in the majority opinion, I believe it to be additionally required by the trial court’s improvident denial of the defendant’s motion for severance.

Wallach, Kupferman and Smith, JJ., concur with Rosenberger, J.; Murphy, P. J., concurs in part and dissents in part in a separate opinion.

Judgment, Supreme Court, New York County, rendered on July 7, 1989, reversed, on the law, and a new trial ordered.