The District Attorney moves to introduce evidence of uncharged crimes and prior bad acts on their direct case to show identity. The defense opposes the application.

The court has considered the People's offer of proof, including grand jury testimony, court file, hearing testimony, trial testimony of the victim and the DNA report(s) from the October 19, 2005 Queens kidnapping case, and the expected testimony of the victim and the DNA report(s) from the alleged sexual assault of October 16, 2005.

Shortly after 7:00pm that evening, Mamadou Ceesay, a security guard on his way to work at a construction site on Fountain Avenue observed a light-colored Ford van with tinted windows. The van had no license plates and the headlights were off. Due to the dark tint, Mr. Ceesay could not see anyone in the van, although he observed what appeared to be the glow of a cell phone being held to a person's ear.

Shortly thereafter, at approximately 8:43pm, an anonymous 911 call brought the police and EMS to a location on Fountain Avenue just south of Seaview Avenue. Ms. St. Guillen's naked body was found wrapped and taped in a bedspread. Ms. St. Guillen's hands were handcuffed behind her back, a sock was stuffed in her mouth and her face and head was wrapped in tape.

During the course of the investigation, the police were given defendant's cellular telephone number and a warrant was obtained for the cell site and call information. These records showed that shortly before the van was seen at the Fountain Avenue location, the defendant's cell phone was used and registered on cell towers near his home in Queens, by the Van Wyck and Belt Parkways, and near Starrett City. The Starrett City tower is in close proximity to the location where Ms. St. Guillen's body was found. Several friends of defendant testified that they spoke personally to him during those calls.

DNA analysis of various items recovered at the crime scene, the van and defendant's apartment show tissue and/or blood matches to defendant, his mother Lucille Harris, his deceased brother Reggie Harris and/or Ms. St. Guillen. Fiber analysis on the bedspread and tape wrapping Ms. St. Guillen's body, and the van were found to be consistent with carpet fibers, rabbit hair and mink fur from items in defendant's apartment.

The People's case for this crime is based solely on circumstantial evidence. There is no direct or conclusive evidence that defendant committed the crimes alleged; thus the identity of the perpetrator is in issue.

On October 16, 2005, M.S., a 22 year old woman, was approached by a black male as she exited the subway in Queens in the early hours of the morning. The victim initially believed the male was a law enforcement officer based on his clothing, which appeared to be a uniform. M.S. was asked for identification and was then handcuffed with her arms behind her back by the unknown black male. She was pushed into a vehicle and driven on Queens Boulevard towards Jamaica. M.S., with her head covered by a jacket, was driven into a garage and then taken down steps into a musty-smelling room. A black knit cap was secured to her face by tape and she was handcuffed to a bed. M.S. was then raped and forced to perform oral sex on her male attacker who informed her that he used a condom. He then rinsed her mouth with alcohol and mouthwash. The victim was forced to dress in clothes, including a t-shirt, provided by her assailant; her own clothes were stolen along with her cell phone and other personal property. M.S. was driven back to her neighborhood and released. This incident remained unsolved until the Office of the Chief Medical Examiner recently compared DNA recovered from the t-shirt to DNA samples taken in the St. Guillen investigation. Forensic analysis showed that the DNA recovered from the collar of the t-shirt given to M.S. matched the DNA sample given by Lucille Harris, defendant's mother.

Law

As a general rule, evidence of a defendant's prior bad acts and uncharged crimes is inadmissible if the only purpose of the evidence is to show defendant's bad character or propensitytowards crime (People v. Molineux, 168 NY 264; People v. Alvino, 71 NY2d 233, 241; People v. Lewis, 69 NY2d 321; People v. Allweiss, 48 NY2d 40). Under Molineux, evidence of uncharged crimes may be admissible, however, if it helps to establish some element of the crime or may be relevant to show intent, motive, knowledge, common scheme or plan, or identity of the defendant (People v. Molineux, 168 NY 264; People v. Alvino, 71 NY2d at 241-242). Even where evidence falls under one of these exceptions, it may not be received unless its probative value exceeds the potential for prejudice to the defendant (Id).

Admissibility of evidence under these principles is determined by reference to a two-part analysis with the first level of this inquiry requiring the proponent of the evidence to identify an issue, other than mere criminal propensity, to which the evidence is relevant (People v. Hudy, 73 NY2d 40, 54-55;People v. Alvino, 71 NY2d 233 ). Once such a showing is made, the court must then weigh the evidence's probative worth against the potential for prejudice; the weighing process is discretionary, but the threshold issue of identifying a specific issue, i.e, intent, motive, etc., to which the evidence pertains is a question of law (People v. Hudy, 73 NY2d at 55 citing People v. Alvino, 71 NY2d at 242).

The use of the identity exception to Molineux, is "proper if it can be said that the alleged conduct was sufficiently unique to be probative on the issue of identity,"(People v. Beam, 57 NY2d 241, 252), demonstrating a distinctive modus operandi (People v. Robinson, 68 NY2d 541; People v. Allweiss, 48 NY2d 40; People v. Condon, 26 NY2d 139).

In Allweiss, the Court of Appeals held that the identity of the killer was the primary issue [*4]at trial. The defendant was charged with homicide, with the People's case based on circumstantial evidence. The District Attorney introduced testimony from six other woman who testified they had been raped by defendant during the five months preceding the homicide. Their testimony described defendant's conduct during those incidents and was offered to show defendant had employed the same modus operandi in the homicide and would thus tend to establish his identity as the killer (Allweiss, 48 NY2d at 45-49). While other evidence including hair samples and a voice identification were admitted, this evidence did not conclusively identify defendant as the killer (Id at 47). The court held that the evidence from the six other woman was highly probative "because it demonstrated a distinctive repetitive pattern, evident at the scene of the homicide, which was characteristic of the defendant's behavior," and this was highly relevant in the homicide, "where there were no witnesses and the other evidence was less than conclusive" (Id at 48).

Likewise, in Beam, the Court of Appeals held that a unique modus operandi was employed by defendant thereby permitting the introduction of evidence of other similar sexual assaults as highly probative of the assailant's identity (57 NY2d 241). The common elements in this case were the age of the victims, the use of a ruse to get them to an isolated location, the general location of the attacks and the pattern of the sexual assault. The court held that, despite minor differences in the attacks, the pattern indicated a unique modus operandi ( Beam, at 252), and went on to further discuss that it is not necessary that "each element of the pattern must be in and of itself unusual; rather the pattern, when viewed as a whole, must be unique."(Id at 253).

In the instant case, the identity of the killer is at issue. While there is circumstantial evidence based on Mr. Ceesay's testimony, defendant's cellular telephone and cell tower usage records, the autopsy findings, and fiber and DNA analysis of defendant's apartment and van, that defendant was involved in disposing of the body of Ms. St. Guillen, there is no conclusive evidence that he committed the homicide.

There are striking similarities between the case on trial and the two prior uncharged crimes. All involved the abduction of young unaccompanied women on isolated streets, with the assailant using the ruse that he was in law enforcement thus acting under color of authority, the use of handcuffs and the identical method of securing each victim with her arms behind her back, and covering the victim's head to obscure her face and eyes. In two of the attacks there is evidence that the assailant was dressed in law enforcement attire, forced the victim into a vehicle, used tape to bind the victim and sexually assaulted them. These actions demonstrate a "distinctive repetitive pattern" that appears to be characteristic of defendant's behavior (Allweiss, supra), and despite minor differences, there is a discernible pattern when viewed as a whole (Beam, supra). Weighing the evidence's probative worth on the issue of identity with the potential for prejudice, and given that the alleged conduct demonstrates a distinctive modus operandi, the People are permitted to introduce such evidence on their direct case.

A limiting instruction on the jury's use of this testimony will be given when the testimony is introduced and again during the court's final instructions to the jury. Should the defense so request, the limiting instruction can also be read to the potential jurors during voir dire.

The District Attorney's application to admit prior uncharged crimes on their direct case is hereby granted to the extent discussed herein. [*5]

This constitutes the decision and order of the court.