Evidence of Common Scheme or Just Evidence of Propensity?

The Court divided as to whether, in a sex crime case, the People should be allowed to present testimony that the defendant committed similar acts with the victim in another county during the same time frame as that alleged in the case at bar. In People v Leeson 2008 NY Slip Op 01243 [2/8/08], County Court admitted extensive testimony from the victim, her brother, and her mother concerning two incidents, occurring in "late August, early September," in which defendant took the victim and her brother to a house and office in Penn Yan, Yates County, to help clean it, and there "some of the same things happen[ed in Penn Yan] as happened on the side of the road near [the victim's] mom's house[]" in Ontario County
The majority held that admission was proper in a case in which

the People's theory was that defendant planned to place the victim in secluded locations in which she was alone with him for the purpose of engaging in sexual activity with her. We thus agree with the court that evidence that he did so on two occasions in addition to those charged in the indictment herein was admissible to establish the common scheme or plan. In any event, we conclude that the evidence also was admissible to complete the narrative of the events charged in the indictment (see People v Till, 87 NY2d 835, 837; People v Gines, 36 NY2d 932, 932-933; People v Jones, 27 AD3d 1161, lv denied 7 NY3d 849), and to provide necessary background information (see People v Conrow, 13 AD3d 1116, lv denied 4 NY3d 829; People v Tarver, 2 AD3d 968). Finally, the probative value of that evidence outweighed any prejudicial impact (see generally Allweiss, 48 NY2d at 47).

By contrast, the two Justices who dissented found that this evidence was solely relevant as to propensity and, thus inadmissible:

We cannot endorse the majority's reliance on the common scheme or plan exception to the general rule excluding evidence of uncharged crimes. A defendant charged with sex crimes would rarely, if indeed ever, engage in such conduct in a public venue but, rather, the defendant would likely choose a secluded location for the purpose of engaging in illicit sexual activity. We therefore cannot agree that the evidence of the two uncharged incidents was admissible to establish that defendant had a common scheme or plan. We also cannot agree with the majority that the evidence of those uncharged crimes was "admissible to complete the narrative of events charged in the indictment . . . and to provide necessary background information," presumably with respect to defendant's relationship with the victim. Addressing first the statement of the majority with respect to "necessary background information," we conclude that, based on the respective ages of the victim and defendant, no specific intent on the part of defendant was necessary to commit the crimes for which defendant was indicted in Ontario County (see Penal Law former § 130.45 [1]; § 130.60 [2]; see generally Lewis, 69 NY2d at 327). We note in any event that the incidents in Yates County occurred either at the same time or after the charged crimes and thus, could not temporally serve to provide background information for defendant's indicted crimes.