Modus Operandi Exception to Molineux Has Limits

In People v Stubbs (2010 NY Slip Op 08485 [4th Dept 11/19/10]) the Appellate Division, Fourth Department held that the trial court erred in admitting evidence with respect to a prior robbery committed a prior attempted robbery committed by defendant. This evidence had been admitted to establish the identity of defendant based on his modus operandi (see generally People v Molineux, 168 NY 264, 293-294, 313-317). In reversing, the Court explained that

defendant’s method of committing the prior crimes, i.e., traveling to
a retail establishment as a passenger in a motor vehicle and threatening the cashier at that establishment with the use of a nonexistent gun, “was not ‘sufficiently unique to be probative on the issue of identity’ ” (People v Pittman, 49 AD3d 1166, 1167, quoting People v Beam, 57 NY2d 241, 252). Although the prior crimes and the robbery at issue herein were similar to the extent that they were committed on the same road, albeit in different political subdivisions, that fact alone does not render the modus operandi unique. As the Court of Appeals has held, “ ‘the naked similarity of . . . crimes proves nothing’ ” (People v Robinson, 68 NY2d 541, 549, quoting Molineux, 168 NY at 316). In addition, we conclude that the prejudicial effect of the evidence concerning the prior crimes outweighed its probative value (see generally People v Hudy, 73 NY2d 40, 55, abrogated on other grounds by Carmell v Texas, 529 US 513).