State of New York                                            MEMORANDUM
Court of Appeals                                        This memorandum is uncorrected and subject to
                                                      revision before publication in the New York Reports.




 No. 12
 The People &c.,
         Respondent,
      v.
 Santino Guerra,
         Appellant.




 Kelly A. Librera, for appellant.
 T. Charles Won, for respondent.




 MEMORANDUM:

       The order of the Appellate Division should be affirmed.

       We are asked once again to discard the rule recognized in People v Rodawald (

 [1904]) and People v Miller (

 [1976]) that “preclud[es] the admission

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                                            -2-                                      No. 12

of prior violent acts of victims in cases where a claim of justification is made” unless the

defendant was aware of the specific acts at the time of the assault (id. at 553; see People v

Watson, 

 [2013]; Matter of Robert S., 

 [1981]).

We decline to do so.

       Defendant stabbed the victim in the chest with a small knife, causing life-threatening

injuries. At trial, the court determined that defendant was entitled to raise a justification

defense. Defendant sought to introduce evidence of the specific violent conduct underlying

four of the victim’s prior youthful offender adjudications to prove that the victim was the

initial aggressor with respect to deadly physical force (see People v Brown, 

,

321 [2019]).    Supreme Court, in accordance with Miller, prohibited the jury from

considering that evidence for that purpose. The Appellate Division affirmed (

 [1st Dept 2021]).

       “Youthful Offender status provides youth four key benefits: relief from [a] record

of a criminal conviction, reduced sentences, privacy from public release of the youth’s

name pending the Youthful Offender determination on misdemeanor offenses only, and

confidentiality of the Youthful Offender record” (Report of the Governor’s Commission

on Youth, Public Safety, and Justice 135 [2014]). Youthful offender designations are given

to those who have “a real likelihood of turning their lives around,” and the protection gives

these individuals “the opportunity for a fresh start, without a criminal record” (People v




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                                            -3-                                       No. 12

Rudolph, 

 [2013]). Given these policy concerns, we see no reason to

revisit the Miller rule in this case.1

       Defendant’s additional challenge to the constitutionality of the Miller rule is without

merit (see Williams v Lord, 996 F2d 1481, 1483-1484 [2d Cir 1993]).




1
  The dissent incorrectly characterizes this appeal as limited to the propriety of the
instruction admonishing the jury not to consider evidence of the victim’s prior violent
conduct for any non-impeachment purpose (dissenting op at 3). However, the dissent’s
arguments make clear that the proposed rule would apply equally in murder cases (see
dissenting op at 12) and therefore could not be limited to situations involving testimony by
the victim. A defendant accused of murdering a 17-year-old could, if the victim happened
to have a prior Youthful Offender determination, offer direct evidence of specific conduct
committed by the victim as a child to show the killing was justified. Our exclusion of such
evidence is neither “archaic,” “obsolete,” nor “out of step with other jurisdictions”
(dissenting op at 8). To the contrary, defendant seeks to offer evidence of prior bad acts
that would not be admissible under the Federal Rules of Evidence or in nearly any state
that has adopted those rules (see Federal Rule of Evidence 404 [a] [2]; McCormick on
Evidence § 193 [8th ed 2022] [surveying various approaches]).

                                            -3-
WILSON, J. (dissenting):

      Imagine for a moment that you are a juror in a criminal case. On trial is a young

man with no history of violence. He is charged with stabbing another young man, one who

on four prior occasions has, without provocation, assaulted and beaten up strangers. The

defendant says he stabbed the victim with a penknife attached to his keys because the other


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                                            -2-                                       No. 12

man wielded a broken beer bottle as a weapon, hit him and was attempting to cut him with

the beer bottle. The victim says he never had a beer bottle, never threatened the defendant,

and it was the defendant who pulled out a knife and stabbed him following a minute of

name-calling back and forth. As a juror, would you feel better able to determine who was

the initial aggressor if you knew of the victim’s history of violence, or would you be better

able to determine the truth without any information about the victim’s prior violent attacks?

Under the doctrine the majority leaves in place today, no court can ever allow you to

consider that information in deciding who was the initial aggressor.

       Santino Guerra stabbed Dylan Pitt with a penknife, after a verbal altercation

between strangers turned violent. Mr. Guerra claimed he was acting in self-defense, and

the trial court concluded that he was entitled to an instruction as to justification, to which

no challenge is made. It is the People’s burden to prove lack of justification beyond a

reasonable doubt. Included in that burden is the requirement that the People prove that Mr.

Guerra, not Mr. Pitt, was the first aggressor. Certain evidence suggested that Mr. Guerra

was the first aggressor; other evidence suggested that Mr. Pitt was. To assist the jury in

determining that question, Mr. Guerra sought to introduce the facts underlying four of Mr.

Pitt’s prior arrests, each of which led to a criminal conviction replaced by a youthful

offender adjudication. The trial court unsealed two of the youthful offender adjudications

and permitted Mr. Guerra to introduce the facts concerning those two offenses, but issued

a limiting instruction that the evidence could be used only for the purpose of evaluating

Mr. Pitt’s credibility and not to be considered in determining who was the initial aggressor.



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                                              -3-                                        No. 12

        The sole issue on this appeal is the propriety of the limiting instruction.2 There is

no challenge to the unsealing of the youthful offender records and no challenge to the

presentation to the jury of the underlying facts of Mr. Pitt’s violent acts leading up to those

adjudications. The majority says, in essence, that we should uphold the limiting instruction

to protect Mr. Pitt’s confidentiality and give him a chance to turn his life around. Whatever

force that position might have in a different case, it has none here, because that very

evidence was exposed to the jurors (and anyone who attended the trial) in this case.

Moreover, a defendant’s right to put the People to their burden to prove guilt beyond a

reasonable doubt—including proof that the defendant was the initial aggressor—is

guaranteed by the U.S. Constitution. Mr. Pitt is not on trial; his statutorily protected interest

in confidentiality pales in comparison and cannot be asserted to deprive Mr. Guerra of a

fair trial.



                                               I.

        On St. Patrick’s Day 2016, Santino Guerra, a twenty-year-old with no record of

violent criminal behavior, encountered a group of four teenagers and young adults




2
  Mr. Guerra does challenge the trial court’s failure to permit him to introduce evidence
relating to two other sets of facts that led to another two other youthful offender
adjudications for Mr. Pitt. However, as to all admissible evidence, trial courts are vested
with great authority to manage trials by precluding evidence as cumulative so as to not bog
down trials (see People v Ely, 

 [1986]). It was well within the trial
court’s discretion to allow introduction of two, but not four, of Mr. Pitt’s prior violent
incidents.
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                                           -4-                                      No. 12

including Dylan Pitt, who had several youthful offender adjudications for violent assaults.

Both Mr. Guerra and Mr. Pitt had been drinking.

       Mr. Guerra had an ugly-looking black eye from an assault he suffered a few days

before his foray to Van Cortlandt Park to watch the St. Patrick’s Day parade. As he and

Mr. Pitt’s group passed each other, one of Mr. Pitt’s friends harangued Mr. Guerra about

his black eye. A series of verbal jabs turned into physical jabs, though with inconsistent

evidence about whether Mr. Pitt wielded a beer bottle as a weapon, swung with it or his

fist, or made contact with Mr. Guerra’s person. Some evidence suggested that Mr. Pitt first

threatened deadly force; other evidence suggested that he did not.

       Mr. Guerra was tried to a jury for assault in the second degree (Penal Law § 120.05)

and asserted a justification defense (see Penal Law § 35.15 [2] [a]), claiming that he

“reasonably believe[d] that [Mr. Pitt was] using or about to use deadly physical force.” To

support his defense, Mr. Guerra sought to question Mr. Pitt about four previous incidents

in which Mr. Pitt had attacked or threatened another person, including a previous St.

Patrick’s Day altercation. Mr. Guerra explained that those prior incidents were relevant as

part of the evidence the jury should be able to rely on to determine whether he or Mr. Pitt

first threatened deadly force. In all four of the cases Mr. Guerra sought to introduce, Mr.

Pitt was adjudicated a youthful offender, meaning that, pursuant to CPL 720.20, his four

criminal convictions in those cases were converted to youthful offender findings and the

related records were sealed pursuant to CPL 720.35 (2). Mr. Guerra learned about those

incidents only because the trial judge had specifically unsealed them for the purposes of

this case. The court allowed Mr. Guerra to cross-examine Mr. Pitt about two of those

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                                            -5-                                       No. 12

incidents, but only to establish that Mr. Pitt had a motive to lie because he was on probation

for the two previous incidents—under our present rule as set forth in People v Miller,

evidence of similar prior bad acts generally can be introduced only if the defendant knew

of them prior to the time of the charged crime or, if unknown to the defendant, the bad acts

consisted of threats against the defendant (

 [1976]). At trial, the

court said that the questioning about the prior incidents “goes only toward the issue of

whether or not Mr. Pitt has a motive to lie and on the issue of his credibility and not for

any other purpose.” Before the jury began its deliberations, the court additionally informed

them that “a person cannot be considered the initial aggressor simply because he has

previously engaged in violent acts.”

       The jury found Mr. Guerra guilty and he was sentenced to three years’ incarceration.

The Appellate Division affirmed Supreme Court’s order convicting Mr. Guerra upon a jury

verdict and rejected Mr. Guerra’s challenge to Supreme Court’s refusal to permit the

challenged evidence on Miller grounds, reasoning that “[s]ince the acts were unknown to

defendant, they were irrelevant to his state of mind at the time of the altercation and cannot

establish that the victim was the initial aggressor” (

, 564 [1st Dept 2021]).

       Mr. Guerra urges us to modify the Miller rule. Doing so would render the limiting

instruction erroneous, and Mr. Guerra would be entitled to a new trial in which he could

argue that Mr. Pitt’s prior violent acts supported the conclusion that Mr. Pitt, not Mr.

Guerra, was the first to threaten deadly force. As we commented in Miller itself, our

existing rule was not then accepted by most state courts or the federal courts (

). In the ensuing decades, the balance has tipped even further against our existing rule.

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                                             -6-                                       No. 12

Although the majority “see[s] no reason to revisit the Miller rule” due to the “policy

concerns” raised by the way Mr. Guerra sought to use the particular evidence in this case

(majority op at 3), those concerns do not justify a misguided and obsolete rule.

                                              II.

       Under Penal Law § 35.15 (2) (a), a defendant is typically justified in using deadly

physical force on another person when the defendant “reasonably believes that such other

person is using or about to use deadly physical force,” where “deadly physical force” is

defined as “physical force which, under the circumstances in which it is used, is readily

capable of causing death or other serious physical injury” (Penal Law § 10.00 [11]). Most

defendants cannot succeed on that defense if they are the “initial aggressor[s]” in a

confrontation (Penal Law § 35.15 [1] [b]; see People v Petty, 

 [2006];

Stokes v People, 

 [1873]).

       Although the general principles of consistency, integrity, and humility underlying

stare decisis are always relevant when we decide cases (see generally State v Donald DD.,

 [2014]), stare decisis “[c]onsiderations . . . are at their [weakest] . . . in

cases . . . involving procedural and evidentiary rules” (Payne v Tennessee, 

 [1991]). Not only do common-law evidentiary rules entail relatively limited reliance

interests (id.; see also People v Turner, 

 [1889]), but litigants are on notice

that “[t]he common law of evidence is constantly being refashioned by the courts of this

and other jurisdictions to meet the demands of modern litigation” (see Brown v Ristich, 

 [1975]). That is, neither Mr. Guerra nor Mr. Pitt considered or in any way

relied on our Miller rule when deciding how to conduct themselves on St. Patrick’s Day,

                                             -6-
                                               -7-                                      No. 12

and few if any future combatants with long criminal records are depending on the

continuation of our existing rule to help tip the first aggressor balance in their favor.

          The relatively light weight of stare decisis here is evident from the changes to our

rule over time. Beginning with People v Lamb, we announced that character evidence of

a victim is inadmissible “as a general principle” but further explained that “when

admissible, it must be in a case where the defendant had reason to be in fear of his life, or

had reasonable grounds to apprehend great bodily harm” (2 Abb Prac [NS] 148, 154 [NY

1866]). Applying that rule in Lamb, we concluded that the trial court properly excluded

the testimony of a third party that the decedent had thrown a pot lid at a door as her husband

left through it, as proof that he had any reason to fear great bodily harm when he returned

15 minutes later and killed her (see 2 Abb Prac [NS] at 160). Seven years later, in Stokes

v People, we modified the rule in Lamb, permitting evidence of threats made by the victim

against the defendant even where the defendant did not know of them because “threats

indicate an intention to do it, and the existence of this intention creates a probability that

he has in fact committed it” (

 [1873]).

          By People v Druse, we had crystalized a new rule that held for the next few decades,

stating

                 “[t]he rule is that, after evidence has been given by a defendant
                 tending to show that the homicide was committed in self-
                 defense, he may follow it by proof of the general reputation of
                 the deceased for quarrelsomeness and violence. But a
                 defendant is confined to proof of general reputation, and
                 evidence of specific acts of violence towards third persons is
                 inadmissible”



                                               -7-
                                              -8-                                         No. 12

(

, 655 [1886]; accord People v Gaimari, 

 [1903]). In People v

Rodawald, we revisited the doctrine once more, noting that “[u]pon a trial for murder . . .

the accused . . . may prove that the general reputation of the deceased was that of a

quarrelsome, vindictive or violent man and that such reputation had come to his knowledge

prior to the homicide” (

 [1904]). We added a further restriction: “[s]uch

evidence is not received to show that the deceased was the aggressor,” (id.) notwithstanding

the fact that unknown threats were still permissible evidence (id., citing Stokes, 

).

        We announced our most recent modification of this doctrine in People v Miller. To

sustain his justification instruction, Mr. Miller attempted to introduce prior incidents and

evidence of his sister’s erratic and sometimes violent behavior. We held that

               “the [Rodawald] rule should be modified to permit a defendant
               in a criminal case, where justification is an issue, to introduce
               evidence of the victim’s prior specific acts of violence of which
               the defendant had knowledge, provided that the acts sought to
               be established are reasonably related to the crime of which the
               defendant stands charged.”

(

). Miller contains no discussion of the weight of stare decisis, evidencing

by its silence our recognition that stare decisis has little or no weight in this particular area.

Much as stare decisis did not factor into our decision in Miller to modify the Rodawald

rule, it does not preclude us from modifying the rule in Miller.

        By contrast, subsequent developments have made Miller an increasingly “archaic

and obsolete doctrine” that is out of step with other jurisdictions (cf. People v Peque, 

 [2013] [discussing a condition for departing from precedent in general]).


                                              -8-
                                           -9-                                      No. 12

Although New York may choose to disregard the evidentiary or procedural rules of the

federal courts or our sister states, we are mindful of the “persuasive force” of other

jurisdictions (cf. Costello on Behalf of Stark v Geiser, 

 [1995]).

Indeed, we have always been attentive to other states’ practice when articulating our

doctrine on this question (see, e.g. Lamb, 2 Abb Prac [NS] at 154-155; Miller, 

). New York’s embrace of what we, in Miller, called “the traditional rule” (

) is increasingly out of the mainstream. Even when we announced the Miller

rule, we noted that “the trend of the decisions in other jurisdictions, even in certain

jurisdictions which formerly denied the admissibility of testimony as to specific acts, is

towards the admissibility of such evidence” (id.). Since Miller, that trend has continued,

as many of the states that “adhered to the rule of exclusion” (id. at 549 n 2) have either

abandoned it or else never fully excluded all evidence of a victim’s character on the first

aggressor question (compare 

 with State v Dunson, 

 [Iowa 1988],

overruled with respect to specific acts evidence State v Williams, 

[Iowa 2019]; Com. v Davis, 

 [1999]; State v Lee, 331 So2d 455, 460 [La

1975]; Thomas v State, 301 Md 294, 307 [1984]; State v Keaton, 258 Minn 359, 367 [1960];

State v Gonzales, 

 [Mo 2005]; State v Lewchuk, 

, 172-

174 [1995]). Today, it is “well established” in most jurisdictions that a defendant may use

some sort of character evidence—even if unknown to the defendant at the time—to argue

that the victim was the first aggressor (see McCormick on Evidence § 193 [8th ed 2022];

Commonwealth v Adjutant, 443 Mass 649, 655 [2005] [“appellate courts in forty-five of

the forty-eight State jurisdictions that have considered the issue have decided that some

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                                            - 10 -                                    No. 12

form of such evidence is properly admissible on the first aggressor issue, regardless

whether the victim’s violent character was known to the defendant at the time of the

assault”]). Although other jurisdictions do not all adopt the same rule, today, New York

appears to stand almost alone in embracing “rule of exclusion” (Miller, 

n 2), save for Maine (see State v Leone, 

 [1990]).

                                             III.

       Innocent people go to prison and guilty people go free when we exclude relevant

evidence. Our blanket prohibition on using any evidence of the victim’s character or prior

bad acts in considering a dispute as to who was the first aggressor undermines our “truth-

seeking function” by barring the consideration of facts relevant to a material issue (see Bill

Birds, Inc. v Stein Law Firm, P.C., 

, 178 [2020]). Excluding that evidence is

especially concerning because it offends “our basic philosophic belief that in criminal cases

there is to be greater latitude in admitting exculpatory evidence than in determining

whether prejudicial potentialities in proof offered to show guilt should result in its

exclusion” (Matter of Robert S., 

 [Fuchsberg, J., dissenting] [citing 1

Wigmore, Evidence, § 194]). Given its potential to obscure the truth, the Miller rule has

been sharply criticized (see, e.g. Robert S., 

 [Fuchsberg, J., dissenting];

Williams v Lord, 996 F2d 1481, 1485 [2d Cir 1993] [Cardamone, J., concurring]).

       The exclusionary rule articulated in Rodawald and Miller has been justified on three

bases, none of which is consistent with the truth-seeking function of courts nor our rules

governing propensity evidence generally. The primary rationale has been that “the worst

man has the right to live the same as the best, and no one may attack another because his

                                            - 10 -
                                           - 11 -                                   No. 12

general reputation is bad” (Rodawald, 

). The second reason, articulated

most clearly in Miller, “is the need to carefully limit and narrow the issues that the jury

must decide” (

; see also Rodawald, 

). Miller and Rodawald

also suggest a third reason, similar to the second but relating only to the admission of

specific acts as opposed to general reputation: “[g]enerally, character and reputation may

not be proved by reference to specific acts, except to impeach the credibility of character

witnesses” (Miller, 

; Rodawald, 

).

       The first rationale functionally extends our evidentiary doctrine in Molineaux

beyond its jurisprudential foundations.      In brief, our Molineaux rule prevents the

prosecution from using evidence that a defendant has committed past crimes or bad acts to

prove that the defendant probably committed the charged crime. We explained that our

exclusion of such evidence was “the product of that same humane and enlightened public

spirit which . . . has decreed that every person charged with the commission of a crime

shall be protected by the presumption of innocence until he has been proven guilty beyond

a reasonable doubt” (

 [1901]): introducing evidence of past bad acts

“would lead to convictions, upon the particular charge made, by proof of other acts in no

way connected with it, and to uniting evidence of several offenses to produce conviction

for a single one” (id. at 292 [quoting Coleman v People, 

 [1873]; accord

People v Jackson, 

 [1976] [“The danger that a jury might condemn a

defendant because of his past criminal activity rather than his present guilt has been

propounded as justification for the exclusion”]).



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                                           - 12 -                                    No. 12

       By contrast, in civil law, liability is often proved by propensity evidence.3 In the

criminal context, we generally break from our norm of permitting past conduct to

demonstrate a propensity in order to protect the presumption of innocence and high bar of

proof beyond a reasonable doubt—not because such evidence has no probative value. But

neither the Molineaux rule nor its underlying purpose has any application to the use of prior

bad acts of the complainant, who is not entitled to the same procedural protections as

criminal defendants because the state is not criminally prosecuting the complainant.

       Adapting our law to conform to the general approach in almost all other jurisdictions

would not impinge on the reasons for eschewing propensity evidence to prove guilt. A

modified rule would apply only in cases where a defendant was entitled to a justification

charge, and only in the subset of those cases in which first aggressor status was disputed.

In such cases, allowing a defendant to introduce exculpatory propensity evidence (whether

reputational or specific relevant bad acts) poses no risk to erosion of the presumption of

innocence or weakening of the burden to prove guilt beyond a reasonable doubt; those

protections, after all, belong to the defendant. Nor would a modified rule harm victims of




3
 For example, courts regularly consider propensity evidence about the defendant and third
parties in cases involving negligent entrustment (see, e.g. Hamilton v Beretta U.S.A. Corp.,

 [2001]), negligent hiring (see e.g. Waterbury v New York City Ballet,
Inc., 

, 160 [1st Dept 2022]; Novak v Sisters of Heart of Mary, 

 [2d Dept 2022]), discrimination claims (see e.g., Robinson v Metro-North
Commuter R.R. Co., 

 [2d Cir 2001]; New York City Bd. of Ed., Community
School Dist. No. 1 v Batista, 

, 382-384; Fern v International Business
Machines Corp., 

 [3d Dept 1994]), and fraud or theft claims (see
e.g. Andryeyeva v New York Health Care, Inc., 

, 171 [2019]; Rocanova v
Equitable Life Assur. Soc. of U.S., 

 [1994]).
                                           - 12 -
                                             - 13 -                                      No. 12

crimes by introducing needlessly prejudicial evidence (see e.g. People v Watson, 

 [2013] [excluding propensity evidence because the victim could not have been

the initial aggressor, “no matter how great his propensity for violence, for the simple reason

that (he) did not have a gun”]).

       The second and third rationales are largely undercut by Miller itself. There, we

altered the rule in Rodawald by allowing the introduction of specific violent acts known to

the defendant, even if those violent acts were not directed at the defendant. In permitting

the admission of such evidence, though “mindful of the danger that the principal issues to

be resolved may be lost in an endless maze of collateral matters,” we resolved that concern

by noting that questions of relatedness and extent of the proof would be sufficiently

constrained by the trial court’s “exercise of its sound discretion” to exclude prejudicial,

cumulative, or collateral evidence (see Miller, 

). Having concluded that

trial courts are fully capable of regulating violent acts about which the defendant knew so

as to avoid unfairness to victims and miring juries in irrelevant mini trials, it is difficult to

conclude that trial courts would be incapable of doing the same for prior violent acts

unknown to defendants.        Meanwhile, by reaffirming Stokes, Miller also allowed a

defendant to prove a complainant’s violent propensity by prior acts (namely, prior threats

made by a complainant, even when unknown to the defendant), a decision at some tension

with its third rationale (see Miller, 

).

       The Miller restriction puts juries like the one here in a peculiar position. On the one

hand, if, prior to their altercation, Mr. Guerra happened to see reports of Mr. Pitt’s prior


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                                           - 14 -                                    No. 12

bad acts in the news, or heard about them from neighbors, the jury could hear evidence of

those bad acts to help decide whether Mr. Guerra was justified in stabbing the complainant.

On the other hand, we say that the jury may not make that same deduction when deciding

who it thought started the fight. In deciding the first aggressor question, the jury was—

because of the Miller rule—admonished that it must not prejudge the complainant based

on his prior St. Patrick’s Day brawl. The Miller rule defies common sense and is out of

line with much of the rest of our evidentiary law. We should update it, much as Miller

updated the antiquated regime of Rodawald.

   The majority posits that because some jurisdictions permit the introduction of

reputation when determining who was the first aggressor but forbid introduction of specific

bad acts, the result here might be the same were we to modify Miller and adopt such a rule

(see majority op at 3 n; U.S. v Smith, 

 [7th Cir 2000] [“character evidence

usually does not go to an essential element of a self-defense claim,” meaning specific acts

evidence is typically inadmissible under Federal Rule of Evidence 405 (b)]). That is true.

However, the possibility that we might modify Miller and adopt a rule precluding bad acts

but allowing bad reputation is not a defense of the Miller rule any more than it is a defense

of a rule never permitting a defendant to introduce any evidence at all—a rule that would

also result in the same outcome in this case.

                                                IV.

   The “policy concerns” (majority op at 3) referenced by the majority should not prevent

us from revisiting this doctrine in this case. Applying a revised rule would not have

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                                            - 15 -                                    No. 12

resulted in any additional harm to Mr. Pitt. Supreme Court independently decided to unseal

Mr. Pitt’s youthful offender records and permitted Mr. Guerra to ask Mr. Pitt about two of

the convictions for the purpose of indicting his credibility. Under the Confrontation Clause

of the Sixth Amendment to the US Constitution, Supreme Court was required to permit

Mr. Guerra to ask Mr. Pitt about those convictions (see Davis v Alaska, 

[1974]). The only question facing Supreme Court with respect to these two adjudications

was whether it should permit Mr. Guerra to use them as evidence about who was the first

aggressor (it did not) and whether it should issue a limiting instruction to the jury

admonishing them only to consider the convictions for the purpose of Mr. Pitt’s credibility

(it did). As for the two wholly excluded offenses, Supreme Court would be free at a retrial

to continue to exclude all evidence about them. Modifying Miller as Mr. Guerra requests

would not require the court divulge any new information about Mr. Pitt’s prior bad acts.

   It is beyond question—and indeed, no one disputes—that Mr. Guerra was entitled to a

justification instruction and that the burden to disprove his defense was on the prosecution

(see People v Umali, 

 [2008]; People v Maher, 

[1992]). Much as Mr. Guerra’s right to a complete defense entitled him to introduce Mr.

Pitt’s convictions to indict his credibility, it also entitled Mr. Guerra to use that already-

introduced evidence to support his justification defense. “Whether rooted directly in the

Due Process Clause of the Fourteenth Amendment . . . or in the Compulsory Process or

Confrontation Clauses of the Sixth Amendment . . . the Constitution guarantees criminal

defendants ‘a meaningful opportunity to present a complete defense’ ” (Crane v Kentucky,


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                                           - 16 -                                    No. 12

 [1986] [quoting California v Trombetta, 

 (1984)]). The

majority defends this application of the Miller rule by citing nonbinding case law (see

majority op at 3), which merely repeated two of the weak justifications for Miller and then

noted that the evidence in question “ha[d] little probative value” because the victim’s

alleged prior bad act did not result in a prosecution or conviction and was insufficiently

similar to the crime at issue (Williams v Lord, 996 F2d 1481, 1483-1484 (2d Cir 1993)]).

Here, unlike in Williams, the facts leading to Mr. Pitt’s multiple previous assault

adjudications bear a striking resemblance to his St. Patrick’s Day altercation with Mr.

Guerra: indeed, one such adjudication stemmed from Mr. Pitt’s assault of a stranger on St.

Patrick’s Day three years prior.

   The majority counters not so much by defending the court’s conduct in this case—

which involves a limiting instruction on already-introduced evidence—but in imagining a

hypothetical case in which some rule one might extract from the dissent were applied

differently to an incomplete set of facts (see majority op at 3 n). I would “reject the

hypothetical on threshold grounds” (see Paul Gewirtz, The Jurisprudence of Hypotheticals,

32 J Legal Educ 120, 121 [1982]). The majority speculates that a defendant accused of

murdering a 17-year-old victim might offer direct evidence of a prior youthful offense to

show the killing was justified (majority op at 3 n), “but one cannot simply assume that the

checks [in the system] fail” (Gewirtz at 121). In the majority’s hypothetical, a trial judge

would have found the evidence relevant, insufficiently prejudicial, and noncumulative at

the very least, and a jury would weigh it along with all other relevant evidence. Suppose—


                                           - 16 -
                                             - 17 -                                     No. 12

to alter the majority’s hypothetical a bit—the 17-year-old victim had several youthful

offender adjudications resulting from attempted knifepoint robberies over the past year in

the exact location where the killing took place and was found shot by the defendant, knife

in hand. Surely in such a context the previous attempted robberies would help a jury decide

whether the defendant was the first aggressor. Although hypotheticals can help us think

more clearly and design better rules (see id. at 120-121), the majority’s textureless

hypothetical does not help us grapple with the limiting instruction at issue in this case.

   The limiting instruction here, which prevented the jury from considering Mr. Pitt’s past

acts as evidence suggesting that he was the initial aggressor, does not serve the purpose of

the youthful offender laws because Mr. Pitt’s past acts were already revealed to the jury.

Moreover, Mr. Guerra, not Mr. Pitt, was on trial. Mr. Guerra’s right to a complete defense

required the trial court to permit the jury to consider Mr. Pitt’s prior similar violent acts as

part of the evidence bearing on which of the two was the first aggressor. Whatever the rule

might be in a case in which the victim’s past acts were wholly obscured from the jury by

virtue of a youthful offender adjudication, this is not that case. Accordingly, I dissent and

would remit for a new trial.




Order affirmed, in a memorandum. Acting Chief Judge Cannataro and Judges Garcia,
Singas and Troutman concur. Judge Wilson dissents in an opinion, in which Judge Rivera
concurs.


Decided March 16, 2023



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