scheme or plan exception in New York

1996Indeed, it is clear that these alleged similar instances, assuming they actually occurred, "were no more than 'separate and independent transaction^] entered into as the occasion arose and not in pursuance of any preconcerted general plan or design’ (People v Grutz, 212 NY 72, 79 , supra)” (Matter of Brandon, supra, at 213).

1990People v Grutz ( 212 NY 72 ), on which the defendant relies for his claim that the common scheme or plan exception was improperly invoked at bar, is inapposite.

2019The plaintiff contends that the prior incident involving the nonparty witness is admissible under the common scheme or plan exception to the general rule ( see Matter of Brandon , 55 NY2d at 212 ).

2019Under the common scheme or plan exception, evidence of similar acts is admissible if it is established that the similar acts are "sufficiently connected with the act in issue such that each forms a part of a common plan on the part of the actor to achieve some ultimate result" ( id. ).

2007Notably, “a modus operandi alone is not a common scheme; it is only a repetitive pattern” (People v Fiore, 34 NY2d 81, 87 [1974]; see People v Poland, 284 AD2d 798, 803-804 [2001] [modus operandi evidence may be admissible where necessary to establish identity of the perpetrator], lv denied 96 NY2d 942 [2001]).

1976As such, the testimony was properly admitted pursuant to the common scheme or plan exception (People v Molineux, supra; People v Fiore, 34 NY2d 81 ).

2021The evidence of an uncharged larceny was properly admitted under the common scheme or plan exception to the Molineux rule ( see People v Lukens , 107 AD3d 1406 , 1407 [4th Dept 2013], lv denied 22 NY3d 957 [2013]; People v Austin , 13 AD3d 1196 , 1197 [4th Dept 2004], lv denied 5 NY3d 785 [2005]; People v Washpun , 134 AD2d 858, 858 [4th Dept 1987], lv denied 70 NY2d 1012 [1988]).

2021Defendant failed to preserve for our review his contention that he was penalized for exercising his right to a trial ( see People v Smith , 187 AD3d 1652 , 1656 [4th Dept 2020], lv denied 36 NY3d 1054 [2021]; People v Cotton , 184 AD3d 1145, 1149 [4th Dept 2020], lv denied 35 NY3d 1112 [2020]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]).

2007The common scheme or plan exception acknowledged in Molineux recognizes that evidence of uncharged crimes may be relevant “to establish a scheme ‘embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others’ ” (People v Simmons, 29 AD3d 1219, 1220 [2006], quoting People v Molineux, 168 NY at 293 ).

2007Notably, “a modus operandi alone is not a common scheme; it is only a repetitive pattern” (People v Fiore, 34 NY2d 81, 87 [1974]; see People v Poland, 284 AD2d 798, 803-804 [2001] [modus operandi evidence may be admissible where necessary to establish identity of the perpetrator], lv denied 96 NY2d 942 [2001]).

1982Rather, “[s]ome connection between the [acts] must be shown to have existed in fact and in the mind of the actor, uniting them for the accomplishment of a common purpose, before such evidence can be received.” (People v Molineux, supra, at p 306 .) Indeed, there must be such a clear concurrence of common features — i.e., time, place and character — that “the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” (2 Wigmore, Evidence [Chadbourn rev ed], § 304, p 249; compare, e.g., People v Grutz, 212 NY 72 , with People v Duffy,

1982(People v Molineux, supra, at pp 305-310 ; see, also, Altman v Ozdoba, 237 NY 218 ; see, generally, Richardson, Evidence [10th ed], §§ 179, 184.) Unlike the intent exception, mere similarity between the acts is an insufficient predicate for admissibility under the common scheme or plan exception.