Molineux and Multiple Count Prosecutions

In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be considered regarding the other counts.

While the Court approved introduction of detailed evidence regarding how stolen property the defendant possessed came to be stolen, it disapproved the use of such evidence to show that unrelated activity was an attempted burglary. In reversing some counts, the court found that possession of the proceeds of prior burglaries "has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged" with regard to a currently charged attempted burglary. Thus, the Court held that the trial court

erred by failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar's tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar's tools counts.

The Court also arguably acknowledged, sub silentio, that the viability of
the persistent felony statute is uncertain (it declined to reach the
issue), even though the Court of Appeals has consistently upheld the
statute against Apprendi (Apprendi v New Jersey, 530 US 466 [2000) claims
(see People v Rivera, 5 NY3d 61 [2005]. The post-Rivera decision of the
United States Supreme Court in Cunningham v California, 549 US 270 [2007] suggests that Rivera might not be the last word on the constitutionality of the New York persistent sentencing law.