In this domestic violence prosecution the defendant stands indicted for assault and sexual misconduct against his former paramour. The People seek to introduce evidence of prior uncharged misconduct by the defendant on their direct case (People v Molineaux, 168 NY 264; People v Ventimiglia, 52 NY2d 350). They also seek to cross-examine the defendant about these incidents if he testifies at trial (People v Sandoval, 34 NY2d 27). The defendant further moves to compel disclosure of the complainant's U-Visa application.

In criminal cases, evidence of an accused's uncharged misconduct is generally not allowed because of the risk a jury might predicate its verdict on his character and not the [*2]objective evidence of the crime to be proved. For this reason, to be admissible, such evidence must be relevant and its force of proof must be greater than its damage to the defendant (People v Lewis, 69 NY2d 325; People v Ely, 68 NY2d 520).

In this case, the People list eight events about which they wish the complainant to testify. As to the first three, detailing bad acts of the defendant against a different person on July 3, 2002, October 30, 2007 and August 12, 2008, the motion is denied. These events are too distant in time and have too remote a connection to these charges to be admissible. The prejudicial effect outweighs the probative value (People v Marino, 271 NY 317; People v Katz, 209 NY 311; People v Marrin, 205 NY 275).

The other five events are listed as occurring on July 21, 2010, between 2010 and July 2011, March 17, 2011, between October 2010 and January 2011 and between March and July 2011. These allegations of physical and sexual misconduct against the complainant are close in time to the indicted charges and constitute, if believed, a pattern of continuous abuse in the parties' relationship. As such, they are highly relevant to the fact-finding process, bearing on the element of intent, as well as affording the jury an understanding of the parties' tumultuous relationship (People v Wright, 288 AD2d 409; People v Chadwick, 227 AD2d 123; People v Shorey, 172 AD2d 634).

In domestic violence cases, "it is highly probative - quite often far outweighing any prejudice - that a couple's marriage was strife-ridden and that the defendant previously struck and/or threatened the spouse/victim..." (People v Bierenbaum, 301 AD2d 119; People v Kovacs, 225 AD2d 457; People v Sutton, 220 AD2d 705; People v Hart, 216 AD2d 485. See, also State v Laible, 594 NW2d 328; State v Johnson, 657 NC2d 383). To limit the prejudicial effect, an appropriate limiting instruction will be given to the jury (People v Walker, 293 AD2d 411).

With respect to the People's Sandoval application, they will not be permitted to question the defendant on the first three allegations for the reasons stated above. The People are also precluded from questioning the defendant about the other five listed events, unless, on his direct testimony, he opens the door to such inquiry by testifying to facts in conflict with the allegations in an effort to mislead the jury (People v Wongsam, 105 AD3d 980; People v Snyder, 103 AD3d 1143).

Finally, the defense seeks disclosure of all documents relating to the complainant's application for a U-Visa, as a victim of domestic violence. The People are not in possession of any documents relating to this application other than their certification that the complainant meets certain criteria necessary to support the complainant's visa application. This certification is on its face neither exculpatory nor a possibly impeachable statement of the complainant. Since Congress' clear intent is to keep these visa applications confidential (8 USC §1367 [a])

in order to encourage undocumented women to come forward and report abuse, the application is denied.

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.