Evidence:

• Library: The Rulebook: The Definitive Quick Reference Guide for New York Criminal Law Practitioners (2020 Ed.)

► EVIDENCE:

Admissibility: "In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule (People v Alvino, 71 NY2d 233, 242; Ando v Woodberry, 8 NY2d 165). Evidence is relevant if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence (People v Lewis, 69 NY2d 321, 325; Richardson, Evidence § 4 [Prince 10th ed]; Proposed Code of Evidence for State of New York § 401 [noting that its definition would "codify" existing law]). The voice exemplar evidence offered by these defendants was broadly relevant, and the trial courts could have exercised their discretion to admit it without permitting substantive cross-examination . . . Not all relevant evidence is admissible as of right, however. Even where technically relevant evidence is admissible, it may still be excluded by the trial court in the exercise of its discretion if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury" (People v Scarola, 71 NY2d 769, 777 [1988]).

Admissibility: "Generally, 'all relevant evidence is admissible unless its admission violates some exclusionary rule' (People v Scarola, 71 NY2d 769, 777 [1988]). 'Evidence is relevant if it has any tendency in reason to prove the existence of any material fact' (id. at 777). However, '[e]ven where relevant evidence is admissible, it may still be excluded in the exercise of the trial court's discretion if its probative value is substantially outweighed by the potential for prejudice' (People v Mateo, 2 NY3d 383, 424-425 [2004]; see Scarola, 71 NY2d at 777)" (People v Harris, 26 NY3d 1, 5 [2015]).

Admissibility; Right to Present a Defense: "[A] 'court's discretion in evidentiary rulings is circumscribed by the rules of evidence and the defendant's constitutional right to present a defense' (People v Carroll, 95 NY2d 375, 385 [2000]). Nevertheless, '[t]he right to present a defense . . . does not give criminal defendants carte blanche to circumvent the rules of evidence' People v Hayes, 17 NY3d 46, 53 [2011], quoting United States v Almonte, 956 F2d 27, 30 [2d Cir 1992] [internal citation and quotation marks omitted])" (People v Lin, 26 NY3d 701, 727 [2016]).

Admissibility; Uncharged Crimes: An analysis of the admissibility of uncharged crimes "begin[s] with the familiar proposition that evidence of uncharged crimes is inadmissible where its purpose is only to show a defendant's bad character or propensity towards crime (see e.g. People v Arafet, 13 NY3d 460, 465 [2009]; People v Giles, 11 NY3d 495, 499 [2008]; People v Alvino, 71 NY2d 233, 241 [1987]). However, '[w]hen evidence of uncharged crimes is relevant to some issue other than the defendant's criminal disposition, it is generally held to be admissible on the theory that the probative value will outweigh the potential prejudice to the accused' (People v Allweiss, 48 NY2d 40, 47 [1979]).

"People v Molineux (168 NY 264 [1901]) prescribes five well-recognized, non-propensity purposes for which uncharged crimes may be relevant (see Alvino, 71 NY2d at 242 ['to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant']; see also e.g. People v Ventimiglia, 52 NY2d 350, 359 [1981]; Molineux, 168 NY at 293). The Molineux categories are not exhaustive, however (see People v Santerelli, 49 NY2d 241, 248 [1980]), and [the Court of Appeals has] held that evidence of prior, uncharged crimes may also be relevant to complete the narrative of the events charged in the indictment (see e.g. People v. Till, 87 NY2d 835, 837 [1995]; People v Gines, 36 NY2d 932, 932-933 [1975]), and to provide necessary background information (see e.g. Till, supra; People v Green, 35 N.Y.2d 437, 442 [1974]; see also Resek, 3 NY3d at 390; Tosca, 98 NY2d at 661).

"Even if the uncharged crimes evidence meets the relevancy threshold (see People v Cass, 18 N.Y.3d 553, 560 [2012]), it is admissible 'only upon a trial court finding that its probative value for the jury outweighs the risk of undue prejudice to the defendant' (Till, 87 NY2d at 837; see e.g. Cass, supra). This inquiry involves 'one of balancing in which both the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other' (Ventimiglia, 52 NY3d 359-360, citing Santarelli, 49 NY2d at 248; Allweiss, 48 NY2d at 47). Weighing the evidence's probative value against its potential prejudice to the defendant is a matter of discretion for the trial court (see Cass, 18 NY3d at 560 n 3). Accordingly, 'our review of this determination is limited to determining whether the trial court abused its discretion' (id., citing People v Hudy, 73 NY2d 40, 55 [1988], abrogated on other grounds by Carmell v Texas, 529 US 513 [2000]; Alvino, 71 NY2d at 242)" (People v Morris, 21 NY3d 588, 594-595 [2013] [emphases added]). See entries for MOLINEUX.

Admissibility; Uncharged Crimes; Context of Police Action: "In People v Tosca (98 NY2d 660 [2002]) and People v Resek (3 NY3d 385 [2004]), [the Court of Appeals] held that a trial court may, in its discretion, admit evidence of uncharged crimes to provide background information explaining the police actions to the jury if the probative value of the evidence outweighs the prejudice to the defendant, and the evidence is admitted with proper limiting instructions" (People v Morris, 21 NY3d 588, 590 [2013]).

Authenticity: "'In order for a piece of evidence to be of probative value, there must be proof that it is what its proponent says it is. The requirement of authentication is thus a condition precedent to admitting evidence' (United States v Sliker, 751 F2d 477, 497 [2d Cir 1984]; see 1-4 New York Evidentiary Foundations § A [2016]). 'Accuracy or authenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it' (People v McGee, 49 NY2d 48, 59 [1979]). [The Court of Appeals has] explained that '[t]he foundation necessary to establish [authenticity] may differ according to the nature of the evidence sought to be admitted' (id.). For example, mere identification by one familiar with an item of evidence may suffice where the item is distinct or unique (see People v Julian, 41 NY2d 340, 343 [1977]; see e.g. People v Flanigan, 174 NY 356, 368 [1903]). Where a party seeks to admit tape recordings, authenticity may often be established by testimony from a participant in the conversation attesting to the fact that the recording is a fair and accurate reproduction of the conversation (see People v Ely, 68 NY2d 520, 527 [1986]; People v Arena, 48 NY2d 944, 945 [1979]). In addition, testimony establishing a chain of custody may suffice to demonstrate authenticity in other circumstances (see e.g. Julian, 41 NY2d at 343; Amaro v City of New York, 40 NY2d 30, 35 [1976]; People v Connelly, 35 NY2d 171, 174 [1974]; see also People v Patterson, 93 NY2d 80, 84 [1999]; Ely, 68 NY2d at 528). Ultimately, '[t]he availability of these recognized means of authentication should ordinarily allow for and promote the general, fair and proper use of new technologies, which can be pertinent truth-yielding forms of evidence' (Patterson, 93 NY2d at 84)" (People v Price, 29 NY3d 472, 477 [2017]).

Authenticity; Photographs: "With respect to photographs, [the Court of Appeals has] long held that the proper foundation should be established through testimony that the photograph 'accurately represent[s] the subject matter depicted' (People v Byrnes, 33 NY2d 343, 347 [1974]; see Patterson, 93 NY2d at 84; 1-4 New York Evidentiary Foundations § I [2016]; Prince, Richardson on Evidence § 4-212 [2008]; Fisch on New York Evidence § 142, at 82-83 [2d ed 1977]). 'Rarely is it required that the identity and accuracy of a photograph be proved by the photographer. Rather, since the ultimate object of the authentication requirement is to insure the accuracy of the photograph sought to be admitted into evidence, any person having the requisite knowledge of the facts may verify,' or an expert may testify that the photograph has not been altered (Byrnes, 33 NY2d at 347; see Patterson, 93 NY2d at 84)" (People v Price, 29 NY3d 472, 477 [2017]).

Balancing: "Relevant evidence 'may . . . be excluded in the exercise of the trial court's discretion if its probative value is substantially outweighed by the potential for prejudice' (Harris, 26 NY3d at 5 [internal quotation marks omitted]; see Sca- rola, 71 NY2d at 777; People v Davis, 43 NY2d 17, 27 [1977], cert denied 435 US 998 [1978], cert denied sub nom New York v James, 438 US 914 [1978]).

Best Evidence Rule: "The best evidence rule 'requires the production of an original writing where its contents are in dispute and sought to be proven' (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643 [1994]). The rule protects against fraud, perjury, and inaccurate recollection by allowing the jury to judge a document by its own literal terms" (People v Haggerty, 23 NY3d 871, 876 [2014]).

Bolstering: See entry for BOLSTERING.

Chain of Custody: Where "[t]he police provide[] sufficient assurances of the identity and unchanged condition of the evidence . .. [,] any alleged gaps in the chain of custody [go] to the weight of the evidence, not its admissibility" (People v Kennedy, 78 AD3d 1477, 1478 [4th Dept 2010], lv denied 16 NY3d 798 [2001]; see People v Hawkins, 11 NY3d 484, 494 [2008]; People v Julian, 41 NY2d 340, 343 [1977]).

Child Sexual Abuse Accommodation Syndrome: The Court of Appeals has repeatedly upheld the admission of expert testimony with respect to Child Sexual Abuse Accommodation Syndrome where the credibility of the complainant is at issue by virtue of delayed disclosure (see People v Williams, 20 NY3d 579 [2013]; People v Diaz, 20 NY3d 569 [2013]; People v Spicola, 16 NY3d...