The Court of Appeals’ April-May Session concludes on Wednesday, May 3rd with two cases on the argument docket (the Court of Appeals’ case summaries can be found here). The Court will address the following issues: (1) whether a civil contempt order for willfully failing to return converted funds may be admitted as Molineux evidence in a criminal trial for theft of the money to establish intent to steal; and (2) whether a criminal defendant was denied effective assistance of counsel where his trial counsel failed to object to the admission of the victim’s reports of sexual abuse made between three and seven years after the alleged abuse under the prompt outcry exception to the hearsay rule.
No. 65 People v Lawrence P. Frumusa
In Frumusa, the majority owner of Webster Hospitality Development LLC (WHD) was charged with stealing almost $250,000 from the company while it was in receivership by diverting credit card receipts to other businesses he owned. Frumusa’s business partner, the minority owner of WHD, sued him for return of the funds, and Supreme Court ordered Frumusa’s businesses that had received the funds to return them, which Frumusa failed to do. Supreme Court, thus, entered a civil contempt order, finding that Frumusa “willfully and deliberately” failed to return the money and illegally converted the funds.
At Frumusa’s criminal trial for the theft, the People sought to admit the civil contempt order as Molineaux proof of Frumusa’s intent to steal. Under the Court of Appeals’ precedent in People v Molineuax (168 NY 264 ), “[e]vidence of uncharged crimes is inadmissible where its only purpose is to show bad character or propensity towards crime” (People v Arafet, 13 NY3d 460, 464-465 ). The Court held, however, that when the prior bad acts are probative “to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant,” such evidence may be admitted so long as it is more probative than prejudicial to the defendant (id. at 465). Following this rule, County Court admitted the civil contempt order, and Frumusa was convicted.
A 3-2 divided panel of the Appellate Division, Fourth Department affirmed, holding that the civil contempt order was properly admitted to show Frumusa’s intent. The Court held, the civil contempt order was not a finding that Frumusa stole the diverted funds, but showed instead that his businesses failed to comply with the Supreme Court order to return the funds to WHD. This, the Court reasoned, as probative of Frumusa’s intent to permanently deprive WHD of the money.
The dissenters argued, in essence, that the majority’s ruling created a distinction without a difference. The civil contempt order arose from an order of Supreme Court directing Frumusa’s businesses to return the very funds that he was alleged to have stolen and, thus, was not Molineaux evidence at all. Instead, the dissent reasoned, admission of the civil contempt order impermissibly gave the jury a prior judicial finding on an essential element of the crime, that Frumusa intended to permanently deprive WHD of the money. The prejudicial effect of that error, the dissent would have held, warranted reversal.
The Appellate Division, Fourth Department’s order can be found here.