People v. Johnson
The People of the State of New York v. Kenneth Johnson
Opinion of the Court
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OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
Just as evidence of prior criminal conduct cannot be admitted as evidence-in-chief to establish a predisposition to commit the crime charged (People v Vails, 43 NY2d 364, 368 ; People v Fiore, 34 NY2d 81, 84 ; People v Molineux, 168 NY 264, 292 ), evidence tending to establish that a defendant did not commit uncharged crimes is, because of its irrelevancy, similarly inadmissible as evidence-in-chief to establish that the defendant did not commit the charged crime. Defendant maintains, however, that the evidence excluded — viz., the inability of a *787 victim of a separate rape to identify defendant as her assailant — was relevant not because it tended to establish a "predisposition” not to commit crime, but because it was probative on the issue of whether the victim of the rape for which defendant was tried misidentified him.
As a general rule, evidence is relevant if it tends "to convince that the fact sought to be established is so.” (People v Yazum, 13 NY2d 302, 304 ; see, generally, McCormick, Evidence [2d ed], § 185; Richardson, Evidence [10th ed], § 4.) On the facts of the present case the evidence defendant sought to introduce was irrelevant to prove his claim of misidentification. In our view, the Appellate Division correctly concluded that "[testimony of another victim concerning another robbery and rape committed in a different manner at another location, and on a different date, that defendant was not the man who attacked her, had no probative value in determining whether defendant robbed, raped and sodomized complainant in this case.” ( 62 AD2d 555, 559 .)
We would also agree that although the conduct of the prosecutor was not exemplary, it was not sufficiently egregious to deprive defendant of a fair trial. (People v Arce, 42 NY2d 179, 189-191 ; People v Alicea, 37 NY2d 601, 603 .)
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.
Order affirmed in a memorandum.
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