The defendant is charged with Petit Larceny (Penal Law § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (Penal Law § 165.40). These charges arise from events on August 7, 2013 while the defendant was employed as a mail carrier for the United States Postal Service ("USPS") out of the Inwood postal station.^[FN1]

The People move to offer on their direct case evidence of uncharged criminal activity by the defendant. Prior to defendant's arrest he was the target of a USPS investigation. The investigation concerned the disappearance of at least sixteen video games rented through GameFly, Inc. and processed through the Inwood postal station between February of 2013 and August of 2013. Agents with the USPS Office of the Inspector General suspected the defendant stole the video games because some went missing on defendant's delivery route, and the defendant then sold nine video games bearing corresponding titles to the same GameStop store shortly after the video games failed to reach the Gamefly members.

As a result of this investigation, on August 7, 2013, USPS agents set up a sting [*2]operation. Special Agent Jonathon Jimenez placed a fake piece of mail in defendant's workload at the Inwood postal station. The fake piece, disguised as a GameFly video game, contained an electronic monitoring device that alerted agent Jimenez when the package was opened. Both the named person and the named address on this fake piece of mail did not exist and, by USPS regulations, this undeliverable piece of mail should have been left at the Inwood station and turned over to defendant's supervisor. Agent Jimenez observed the defendant through video surveillance take this fake piece of mail and place it in his legitimate mail and leave the Inwood station. Agent Jimenez followed the defendant along his route until he entered an apartment building at 521 Isham Street. While the defendant was inside of this apartment building the fake mail signaled that it had been opened. Agent Jonathan Jimenez recovered the opened fake piece of mail from on top of the mail box near where the defendant was sorting the mail for the building. Agent Jimenez arrested the defendant.

By Motion served and filed on March 5, 2014 the People moved, pursuant to People v Molineaux, 168 NY 264, to admit on their direct case evidence that the defendant sold nine games whose titles corresponded to the ones that went missing from his route to the same Gamestop location. The defendant served and filed his opposition to the People's request on March 24, 2014.

Generally, evidence of a defendant's commission of other crimes is inadmissible if such evidence is offered to establish a criminal disposition or propensity (see People v Molineaux, 168 NY 264 [1901]). Introduction of this type of collateral evidence may be time consuming, confuse the jury and most importantly raise the specter that a jury may condemn the accused because of the other crimes and not solely on the evidence of guilt of the crimes charged (see People v Alvino, 71 NY2d 233 [1987] People v Lewis, 69 NY2d 321 [1987]). However, relevant evidence of collateral criminal acts may be admissible to establish: 1) motive; 2) intent; 3) the absence of mistake or accident; 4) a common scheme or plan; or 5) the identity of the perpetrator (see People v Molineux, 168 NY 264 [1901]). These five Molineux exceptions are merely illustrative and not exclusive (see People v Jackson, 39 NY2d 64 [1976]).

A trial court must first decide that the evidence is admissible as having some probative value directly relevant to a material issue and second must weigh the probative value against the potential for undue prejudice to the defendant (see People v Alvion, 71 NY2d 233 [1987] People v Hudy, 73 NY2d 40 [1988] People v Ventimiglia, 52 NY2d 350 [1981] People v Allweiss, 48 NY2d 40 [1979]). Here, the court must first decide whether, as a matter of law, the nine prior acts are admissible and second whether, as a matter of discretion, the probative value outweighs the potential undue prejudice to the defendant.

In order for the People to prove beyond a reasonable doubt that the defendant is guilty of petit larceny the People must establish that the defendant stole property with the intent to deprive another of the property. In order for the People to prove beyond a reasonable doubt that the defendant is guilty of Criminal Possession of Stolen Property in the Fifth Degree, they must show that the defendant knowingly possessed stolen property with intent to benefit himself or to impede the recovery of the property by an owner. [*3]

One issue presented by the alleged facts here is whether the defendant knowingly and intentionally opened a piece of mail for the purpose of selling the GameFly game inside the piece of mail for his own profit. The court finds that the nine prior sales of video games, whose titles correspond to the ones that were missing from the defendant's mail route, are directly relevant to the defendant's intent on August 7, 2013. Evidence of prior repetitive similar unlawful acts tends to negate a actor's innocent intent on the particular occasion in question and may be admitted when intent can only be inferred from the act in question (see Matter of Brandon, 55 NY2d 206 [1982] People v Alfaro, 19 NY3d 1075 [2012] [imitation pistol, handcuffs, and handcuffs keys found in defendant's possession or vicinity immediately after robbery admissible to prove element of intent to use or threaten physical force upon another] People v Cass, 18 NY3d 553 [2012] [evidence that defendant previously stabbed a male victim in response to a sexual advance admitted to show that defendant had the intent to target gay men for violence and rebut defendant's claim of extreme emotional disturbance] cf People v Bradley, 20 NY3d 128 [2012] [evidence that defendant stabbed an unidentified man more than 10 years earlier improperly admitted for the purpose of rebutting defendant's claim of justification]). The nine prior incidents where GameFly video games went missing on defendant's mail route and corresponding games were then sold by defendant to the same GameStop store are relevant to prove defendant's intent.

Additionally, the court finds that the evidence of nine prior incidents relevant as to the modus operandi of the defendant. Evidence of similar crimes may be admissible as identity or modus operandi evidence where "the similarities [are] unusual enough to compel the inference that the defendant committed both" (see People v Beam, 57 NY2d 241, 251 [1982] People v Condon, 26 NY2d 139 [1970] [evidence of uncharged crime may be admitted unless defendant's identity is conclusively established by other evidence]). Here, a proper inference may be made that the prior acts amounted to thefts and sales. As such, they are relevant to show the defendant's identity as the person who opened the fake package as acting under his alleged modus operandi (see People v Agina, 18 NY3d 600 [2012]).

Furthermore, these prior acts are also relevant to prove that the fake piece of mail was not opened by mistake or accident (see People v Bourne, 46 AD3d 1101 [3rd Dept 2007], lv denied 10 NY3d 762 [2008] cf. People v Wilkinson, 71 AD3d 249 [2010] [evidence of defendant's prior uncharged drug sale to the same buyer improperly admitted]). These prior acts are directly probative that the fake piece of mail was not opened by mistake or accident.

Although the People alleged the nine prior acts are admissible as part of a common scheme or plan, this is not the case here. When a common scheme or plan exists, proof of uncharged criminal acts may be offered when the collateral acts were committed in order to effect the charged crime (see Matter of Brandon, 55 NY2d 206 [1982] People v Fiore, 34 NY2d 81 [1974]; Altman v Ozdoba, 237 NY 218 [1923]). Mere similarity, however, between the crime charged and the alleged other criminal acts is not sufficient because there must be a single plan encompassing both the charged and uncharged acts which may be naturally explained as committed as part of a [*4]general plan (see People v Grutz, 212 NY 72 [1914][conviction reversed because testimony by co-conspirator regarding uncharged arsons were separate and independent transactions not part of a preconceived general plan]). Because the People offer no evidence that these nine prior acts were part of defendant's larger plan, they are not admissible as part of a common scheme or plan.

This court finds the evidence of these prior acts is directly relevant to prove defendant's intent, absence of mistake or accident and identity and modus operandi. However, to be admissible, this evidence's probative value must outweigh the potential for undue prejudice to the defendant (see People v Alfaro, 19 NY3d 1075 [2012] People v Bradley, 20 NY3d 128 [2012] People v Cass, 18 NY3d 553 [2012]). The People will undoubtably argue to the jury that the prior acts amounted to thefts and sales of GameFly video games by the defendant. As such, these have substantial probative value concerning material issues such as defendant's intent, lack of mistake or accident and his identity as the person who opened the fake package. Furthermore, these nine incidents are not unduly prejudicial when compared to properly admitted evidence such as testimony regarding prior threats of murder and prior rapes (see People v Allweiss, 48 NY2d 40 [2012] [evidence of defendant's characteristic behavior during prior rapes properly admitted because it demonstrated a distinctive repetitive pattern evident at the scene of the murder] People v Gamble, 18 NY3d 386, rearg denied 19 NY3d 833 [2012] [limited testimony that defendant had previously threatened to kill one victim and another person properly admitted] cf People v Drake, 94 AD3d 1506 [4th Dept 2012] [defendant's alleged postmortem sexual assault on the female even if relevant improperly admitted because its probative value did not outweigh its prejudicial effect] lv denied 20 NY3d 1010 [2013]). The significant probative value of the nine prior criminal acts in this case far outweigh the minimal undue prejudice to the defendant.

The court finds that evidence of the nine prior incidents where GameFly video games went missing from defendant's mail delivery route and his subsequent sale of corresponding title to the same GameStop location is admissible on the People's direct case. The People's motion is granted.

Dated:New York, New York

April 17, 2014

________________________

ANTHONY J. FERRARA

Judge of the Criminal Court