The People v. Anthony DiPippo

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This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 11

The People &c.,

Respondent,

v.

Anthony DiPippo,

Appellant.

Mark M. Baker, for appellant.

David M. Bishop, for respondent.

STEIN, J.:

On this appeal, defendant Anthony DiPippo argues that

the trial court abused its discretion by precluding him from

introducing evidence of third-party culpability during his

retrial for felony murder and rape in the first degree. We

conclude that, under the circumstances of this case, defendant

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should have been permitted to present evidence of third-party

culpability to the jury.

I.

In 1994, a 12-year old girl (hereinafter the victim)

went missing in Putnam County. Tragically, her remains were

found, over one year later, in a wooded area off a dirt road

known to some locals as "mari[h]uana road." Defendant and one of

his friends, Andrew Krivak, were arrested in 1996 and charged

with raping and murdering the victim on or about October 3, 1994.

Following a jury trial, defendant was convicted of murder in the

second degree and rape in the first degree, and he unsuccessfully

exhausted his direct appeals (265 AD2d 340, 340 [2d Dept 1999],

lv denied 94 NY2d 918 [2000]).

On one of defendant's subsequent CPL 440.10 motions,

the Appellate Division vacated the judgment of conviction and

sentence and remitted the matter for a new trial on the ground

that defendant had been denied the effective assistance of trial

counsel because his attorney had operated under a conflict of

interest (82 AD3d 786, 787 [2d Dept 2011], lv denied 17 NY3d 903

[2011]). More specifically, counsel had previously represented

Howard Gombert, a possible suspect in the victim's rape and

murder, on an earlier rape charge (see id. at 788-789). The

Appellate Division concluded that counsel's failure to disclose

his prior representation of Gombert to defendant or the trial

court, combined with counsel's failure to "conduct even a minimal

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investigation" into Gombert's potential involvement in the crimes

for which defendant stood accused, demonstrated that the conflict

operated on counsel's representation of defendant (id. at 791).

Upon his retrial, defendant sought to admit evidence

suggesting that Gombert was the perpetrator of the crimes with

which defendant was charged. Defendant made an offer of proof to

the court detailing the evidence that he claimed supported his

third-party culpability defense. Foremost amongst this evidence

was the affidavit of Joseph Santoro, who was incarcerated with

Gombert in Connecticut1 and claimed that Gombert had made

incriminating admissions in April 2011 with respect to his

involvement in the victim's death.

According to Santoro's affidavit, Gombert told him that

Putnam County authorities were "trying to get him for the killing

of two girls" in the Putnam County area. Gombert named the

victim as one of the girls, asserting that, in any event, "they

already convicted some other suckers" in connection with her

death. Santoro asked Gombert, "[s]o the other guys didn't do

it?" and, according to Santoro, Gombert laughed and responded

that "[e]ven if they didn't, they got no evidence against me.

It's been a long time since then." Thereafter, Gombert made a

1

Gombert was incarcerated for crimes that included

attempted sexual assault of an eight-year-old girl and third-

degree sexual assault of one of his girlfriends (see State v

Gombert, 80 Conn App 477, 479, 836 A2d 437, 441 [Conn App Ct

2003]; Gombert v Warden, 2013 WL 4873470, *1 [Conn Super Ct Aug.

22, 2013]).

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derogatory sexual comment about the victim, prompting Santoro to

ask whether Gombert had sexual relations with her. Gombert

explained to Santoro that he had met the victim at his former

girlfriend's house, and was attracted to her. Gombert claimed

that the victim "flirted with him a lot" and offered to babysit

for Gombert's child, but Gombert declined the babysitting offer

because he was with the child's mother at the time. According to

Santoro, Gombert then stated that "[t]he only way he could get

[the victim] into his car was to tell her he wanted her to

babysit for his daughter" and that, after he did so, he had sex

with the victim in a red car with a black hood. Santoro elicited

from Gombert that this occurred at "the time [the victim]

disappeared." When Santoro told Gombert that he would be better

off keeping quiet, Gombert told him that "'[i]t don't matter now.

They already got those other guys/suckers so I'm in the clear.'"

Santoro also described sexual comments made by Gombert about the

victim on a separate occasion, at which point Gombert told

Santoro that the victim did not want to have sex with him, but he

"had to persuade her." In addition, Gombert made statements

regarding a second missing girl, identified by first name, who

had indeed gone missing, and whose body he claimed would never be

found by the police. Santoro interpreted Gombert's statements to

him as boasts that Gombert had killed both girls, and that

defendant and Krivak were wrongly prosecuted for killing the

victim.

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Defendant's proffer supplemented Santoro's affidavit

with the statements of various witnesses establishing that

Gombert knew the victim, having met her at his former

girlfriend's house, where the victim often spent time with the

former girlfriend and her children. Defendant also submitted

statements establishing that the victim had discussed babysitting

Gombert's child with Gombert and his then-girlfriend. Gombert's

then-girlfriend and another witness also confirmed that Gombert

had regular access to and routinely drove the girlfriend's car,

which was red with a black hood and had Connecticut license

plates. The girlfriend further informed police that, after they

saw a missing person poster for the victim, Gombert told her that

he had given the victim a ride in her car the previous week.

In addition, defendant proffered notes from a police

officer indicating that a witness, Anita Albano, had seen the

victim, on the last day that she was seen alive, getting into a

compact red vehicle with Connecticut license plates, driven by a

young man with whom the victim appeared to be familiar. When

Albano viewed a photograph array, she stated that the person in

picture number two, if anybody, looked like the driver;

photograph number two depicted Gombert. Finally, defendant

tendered what he termed "reverse Molineux" (People v Molineux,

168 NY 264, 273 [1901]) evidence, namely, allegations that

Gombert had raped and sexually assaulted other girls and women in

what he claimed was a similar manner to that which was alleged

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with regard to the victim.

Initially, County Court denied defendant's motion to

admit the third-party culpability evidence because it found that

Albano had not identified Gombert as the driver of the vehicle

she saw the victim enter on the day she disappeared, but the

court later reopened the matter to hear testimony from Albano

regarding her observations. At that hearing, Albano testified

that she had not identified Gombert, who was older than the

person she saw, as the driver; rather, she claimed to have told

the police officers that the driver was not depicted in the

photographs but that Gombert, if anyone, bore some resemblance to

the driver. Albano further testified that, a few days before the

hearing, she was shown a picture of the red vehicle belonging to

Gombert's former-girlfriend, and that it was not the vehicle that

she had seen on the day in question. Two police officers

corroborated aspects of this testimony.

In light of Albano's testimony and the absence of any

direct evidence placing Gombert with the victim on the day she

was last seen alive, County Court held that defendant had failed

to present sufficient evidence pointing to Gombert as the

perpetrator, and that Gombert's alleged statements to Santoro

were inadmissible hearsay. County Court thereafter denied

defendant's request to reconsider its ruling.

At trial, the People presented evidence generally

establishing that the victim was last seen alive on October 3,

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1994. A few witnesses testified that they saw the victim at a

gas station that night, in the company of, among others,

defendant and Krivak. According to the prosecution's main

witness, the victim, defendant, Krivak, the witness, and two

other male friends were driving home from the gas station in

Krivak's van when Krivak pulled off to the side of "mari[h]uana

road." The witness testified that two of the men were consuming

drugs in the front seat, and that she and the others were

drinking alcohol and smoking marihuana in the back when Krivak

began grabbing at the victim, who resisted. According to the

witness, Krivak threw the victim to the floor of the van, pulled

off her clothing, tied her hands with rope, shoved her underwear

in her mouth, tied her bra around her face, and raped her. A few

minutes later, the witness asserted, defendant also raped the

victim who, by the end, appeared "lifeless." The witness

testified that Krivak and defendant wrapped the victim in her

clothes, picked her up, and left her somewhere outside the van.

The witness admitted, however, that she did not

disclose any of this information to the police the first two

times she spoke to them, and it was not until two years after the

alleged murder, when she received warnings from the police that

she could be charged, that she implicated defendant and Krivak.

Further, the witness's credibility was impeached by questions

concerning her drug use that night and, more generally, around

the time of the victim's disappearance, as well as by her

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admission that she continued to associate with defendant after

the alleged crimes were committed.

The victim's remains were found with rope tied around

her wrists -- which were behind her back -- and looped around her

neck and down to her ankle in a "hogtied" position. The victim

did not appear to have been wearing clothing, and the

deteriorated remains of her underwear were found balled up at the

top of the skeleton's spine. A consultant with the medical

examiner's office opined that the location of the underwear was

consistent with it having been inside the victim's mouth, and

testified that this could have caused asphyxiation. Several

pieces of jewelry later identified as belonging to the victim

were found in Krivak's van.

Defendant testified in his own defense and adamantly

denied his guilt. Defendant also attempted to persuade the jury

that the People's main witness was not credible given her initial

denial of any knowledge of the crime. To that end, the two

uncharged men who the People's main witness claimed were in the

van when the victim was allegedly raped and killed testified that

they were not present that evening and denied any knowledge of

the crimes. Both of these witnesses admitted that they had each

previously signed statements indicating that they were in the van

when defendant and Krivak committed the crime, but they claimed

to have made those statements only as a result of police

coercion. Another friend of defendant testified that police

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officers tried to persuade him to sign a statement indicating

that he had seen the victim with defendant and Krivak that night,

but he refused because it was not true. Finally, one of the

victim's school teachers testified that she saw the victim at the

mall five days after she was allegedly killed by defendant and

Krivak.

The jury found defendant guilty of felony murder and

rape in the first degree, and defendant was sentenced to an

aggregate prison term of 25 years to life. On defendant's

appeal, the Appellate Division affirmed (117 AD3d 1076 [2d Dept

2014]). As relevant here, the Appellate Division held that the

trial court had "providently exercised its discretion in denying

[defendant's] motion to introduce the proffered [third-party

culpability] evidence" (id. at 1076). A Judge of this Court

granted defendant leave to appeal (24 NY3d 1083 [2014]), and we

now reverse.

II.

"[T]he Constitution guarantees criminal defendants 'a

meaningful opportunity to present a complete defense'" (Nevada v

Jackson, ___ US ___, ___, 133 S Ct 1990, 1992 [2013], quoting

Crane v Kentucky, 476 US 683, 690 [1986]; see Holmes v South

Carolina, 547 US 319, 324 [2006]; People v Carroll, 95 NY2d 375,

385 [2000]). Where a defendant seeks to pursue a defense of

third-party culpability at trial, evidence offered in support of

that defense is subject to "the general balancing analysis that

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governs the admissibility of all evidence" (People v Primo, 96

NY2d 351, 356 [2001]). Thus, a court must determine whether the

evidence is relevant and, if so, whether "its probative value is

outweighed by the prospect of trial delay, undue prejudice to the

opposing party, confusing the issues or misleading the jury" (id.

at 355; see People v Negron, 26 NY3d 262, 268 [2015]). Further,

"[t]he admission of evidence of third-party culpability may not

rest on mere suspicion or surmise" (Primo, 96 NY2d at 357; see

Holmes, 547 US at 327; People v Schulz, 4 NY3d 521, 529 [2005]).

Generally, "[r]emote acts, disconnected and outside of the crime

itself, cannot be separately proved to show that someone other

than the defendant committed the crime" (Schulz, 4 NY3d at 529

[internal quotation marks and citations omitted]). Where, as

here, the defendant makes an offer of proof to the court

explaining the basis for a third-party culpability defense and

connecting the third-party to the crime, and the probative value

of the evidence "plainly outweighs the dangers of delay,

prejudice and confusion," then it is "error as a matter of law"

to preclude the defendant from presenting such proof to the jury

(Primo, 96 NY2d at 357).

In People v Primo, we held that it was error to

preclude third-party culpability evidence where a ballistics

report linked the bullets recovered from the scene of the charged

shooting to a gun used by a third party -- who was identified as

being present at the time of the shooting -- in an unrelated

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assault two months later (see id.). In contrast, we have held

that speculative assertions that other unidentified individuals

had a motive to harm a victim are insufficient to support

admission of third-party culpability evidence (see People v King,

___ NY3d ___, ___ [decided herewith]; People v Gamble, 18 NY3d

386, 398 [2012]). We have also upheld the preclusion of third-

party culpability evidence where the defendant proffers only

general evidence establishing that an identified third party has

committed the same type of crime in the same general area close

in time to the charged crime (see Schulz, 4 NY3d at 529). Yet,

while we have held that proof connecting a third party to the

crime may establish the probative value of the proffered

evidence, we have never held that there must, in every case, be

proof directly linking the third party to the crime scene;

indeed, we have recently held that, in certain circumstances,

third-party culpability evidence may be admitted absent such

direct evidence (see Negron, 26 NY3d at 269).

Here, our evaluation of defendant's third-party

culpability proffer begins with Santoro's statement, which faces

a threshold evidentiary hurdle -- namely, the question of whether

Gombert's declarations are admissible under the hearsay exception

for declarations against penal interest. A statement may be

admitted as a declaration against penal interest where: the

declarant is unavailable as a witness at trial; the declarant was

aware the statement was against his or her penal interest when it

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was made; the declarant had competent knowledge of the facts

underlying the statement; and "supporting circumstances

independent of the statement itself . . . attest to its

trustworthiness and reliability" (People v Settles, 46 NY2d 154,

167 [1978]; see People v Shabazz, 22 NY3d 896, 898 [2013]).

There can be no serious dispute that the first three of these

requirements are satisfied here. It is undisputed that Gombert

would have invoked his right against self-incrimination if he was

called to the stand, he was certainly aware that his statements

indicating that he had sexually assaulted the victim were against

his penal interest, and he had competent knowledge of his own

involvement in the victim's life and death. It is the last of

the required elements -- the reliability of the statement -- that

raises a question.

With regard to that element, we have held that, "[t]o

circumvent fabrication and insure the reliability of

. . . statements [against penal interest], there must be some

evidence, independent of the declaration itself, which fairly

tends to support the facts asserted therein" (Settles, 46 NY2d at

168; see People v Shortridge, 65 NY2d 309, 313 [1985]). When

considering the reliability of a declaration, courts should also

consider the circumstances of the statement, such as, among other

things, the declarant's motive in making the statement -- i.e.,

whether the declarant exculpated a loved one or inculpated

someone else, the declarant's personality and mental state, and

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"the internal consistency and coherence of the declaration"

(Shortridge, 65 NY2d at 313). Where, as here, the statement is

offered by the defendant, this element is satisfied if the

supportive evidence "establishes a reasonable possibility that

the statement might be true" (Settles, 46 NY2d at 169-170; see

Shabazz, 22 NY3d at 898). Furthermore, "[c]ircumstances of

seeming indifference may still harmonize the declarant's

statement so as to furnish the necessary link" (Settles, 46 NY2d

at 169). Significantly, "[w]hether a court believes the

statement to be true is irrelevant, and the question of

admissibility is to be resolved without regard to the seeming

strength or weakness of the People's case" (Settles, 46 NY2d at

170).

In this case, there is no obvious motive for Gombert to

falsely implicate himself; rather, it was in his best interest to

keep quiet about the supposed innocence of defendant and Krivak

(compare Shortridge, 65 NY2d at 313). Nor is there any evidence

that Gombert had a mental condition that would explain his

unprompted statements alluding to his involvement in the victim's

death. The statement itself was internally consistent and

coherent, with no apparent contradictions. Most significantly,

almost all of Gombert's claims, as recounted by Santoro, were

corroborated by outside sources, including the fact that Gombert

knew the victim, the circumstances under which he had met her,

that they had discussed having her babysit for his child, that

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Gombert had access to a vehicle generally matching the

description of the car as given to Santoro, and that Gombert knew

the other identified missing girl.2 Under these circumstances,

the fourth element of the Settles test is satisfied. Thus, had

Santoro testified at trial, Gombert's statements to him would

have been admissible.

In light of their admissibility, Gombert's declarations

connected him to the crime and, when Santoro's proposed testimony

is considered in combination with the additional proffered

evidence, defendant's third-party culpability proffer was

compelling and highly probative of the question of who killed the

victim. In particular, in addition to the corroboration of the

individual facts in Santoro's affidavit by statements from

outside witnesses, defendant's "reverse Molineux" evidence

satisfied his burden regarding the proffer.

While unlikely to be sufficient standing alone, we have

previously recognized that reverse Molineux evidence -- i.e.,

evidence that a third party has committed bad acts similar to

those the defendant is charged with committing -- is relevant to,

and can support, a third-party culpability proffer where the

crimes reflect a "modus operandi" connecting the third party to

2

Almost all of these facts were provable without resort to

hearsay and -- contrary to the dissent's suggestion -- the trial

court did not find the form of defendant's offer of proof to be

insufficient in determining that Gombert's admissions were

unreliable.

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the charged crimes (see Schulz, 4 NY3d at 528; see also People v

Bunge, 70 AD3d 710, 711 [2d Dept 2010]; United States v

Aboumoussallem, 726 F2d 906, 911 [2d Cir 1984]; State v Garfole,

76 NJ 445, 451, 388 A2d 587, 590 [1978] ["The same concept of

relevancy which justifies submission of other-crimes evidence by

the State supports it when proffered by the defendant"]).

Typically, in evaluating evidence of similar acts for the

presence of a modus operandi when such evidence is offered by the

People, we look to whether the "similarities were unusual enough

to compel the inference that the [same individual] committed

both. Thus, the . . . modus operandi must be sufficiently unique

to make the evidence of the uncharged crimes 'probative of the

fact that [the individual] committed the one charged'" (People v

Beam, 57 NY2d 241, 251 [1982], quoting People v Condon, 26 NY2d

139, 144 [1970]; see People v Mateo, 93 NY2d 327, 332 [1999];

People v Allweiss, 48 NY2d 40, 47 [1979]). Although defendant

urges us to adopt a more relaxed standard for such proof when it

is offered on behalf of the defense (see e.g. Aboumoussallem, 726

F2d at 911-912; United States v Stevens, 935 F2d 1380, 1404 [3d

Cir 1991]; State v Scheidell, 227 Wis 2d 285, 304, 595 NW2d 661,

671 [1999]), we have no need to do so here because defendant's

proof meets the ordinary standard for evaluating such evidence.

Specifically, defendant's written proffer tended to

demonstrate that at least two other victims of sexual assaults by

Gombert -- both of whom, like the victim here, were known to

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Gombert prior to the assaults and were children at the relevant

times -- alleged that Gombert had sexually assaulted them, on

some occasions in the woods, while restraining their hands (in at

least one instance with a rope in a "hogtied" fashion), and

shoved articles of clothing in their mouths. Taken together,

these characteristics of the alleged rapes and, in particular,

the shoving of the clothing in the victims' mouths -- which is

consistent with the state of the victim's body when it was found

and the prosecution's theory of the potential cause of her death

-- are sufficiently unique for those bad acts to qualify as modus

operandi evidence connecting Gombert to the victim's death (see

Allweiss, 48 NY2d at 48).3 Thus, to the extent defendant has

proffered allegations of sexual assault against other victims

containing this combination of characteristics, the reverse

Molineux evidence supports his third-party culpability proffer.

Viewed in its totality, if proven through appropriate

witness testimony at trial, defendant's proffer demonstrated

that: Gombert knew and had access to the victim; he was familiar

3

While defendant did not present this proof to the court

through affidavits of the other alleged victims, we note that the

court did not request that he do so and, while that may have been

preferable, we do not find this omission to be fatal to his

proffer. Further, defendant offered to have his defense

investigator testify to the victims' statements in support of his

proffer. Defense counsel has acknowledged that, if he had been

permitted to offer the third-party culpability evidence at trial,

it would have been necessary to have offered the testimony of the

appropriate witnesses, themselves, so as to avoid any hearsay

problems.

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with the road near which the victim's remains were found; he had

a history of allegedly assaulting other young girls with whom he

was familiar in a manner uniquely similar to the prosecution's

theory of how the victim was killed; and that Gombert allegedly

made statements indicating that he had sexually abused the victim

around the time of her disappearance and that defendant and

Krivak were prosecuted for crimes that he had committed. As in

Primo, this evidence was sufficiently probative to be admissible

(see 96 NY2d at 357). Contrary to County Court's determination

and the dissent's position, defendant's inability to place

Gombert with the victim on the day, or at the precise location,

of her disappearance does not eviscerate the probative value of

defendant's third-party culpability evidence or render it

speculative (cf. Negron, 26 NY3d at 269). Such evidence would

undoubtedly strengthen any proffer. However, the strength of the

evidence necessary to establish the admissibility of proof

relating to a third party's culpability will depend, among other

things, on the nature of the crime. Here, inasmuch as the exact

time and place of the crime are subject to dispute given the

circumstances of the victim's disappearance and the lengthy

period of time that elapsed before her body was discovered --

which explains the absence of direct proof in defendant's proffer

tying Gombert to the crime scene -- Gombert's declarations

against penal interest are sufficiently probative. Thus,

although a jury would be free to discredit Santoro's account of

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Gombert's admissions and defendant's theory that Gombert was

actually the perpetrator, it was error to preclude him from

presenting the evidence in question because "its probative value

plainly outweigh[ed] the dangers of delay, prejudice and

confusion" (Primo, 96 NY2d at 357; cf. Negron, 26 NY3d at 269;

compare King, ___ NY3d at ___; Gamble, 18 NY3d at 398; Schulz, 4

NY3d at 528).

In so holding, we do not alter the rules of

admissibility for third-party culpability evidence. The facts as

presented in Primo do not, as the dissent implies, constitute the

minimum proof required for the admission of evidence of third-

party culpability. It is true that the defendant in Primo was

able to connect the gun used in commission of the charged

shooting to a third party, who the shooting victim placed at the

scene (see 96 NY2d at 357). Tellingly, however, we have no

victim in this case who can identify those present at the time of

death, and the instrument of the victim's death cannot be

connected to either defendant or Gombert. This case is,

therefore, plainly distinguishable from Primo and,

understandably, the type of third-party culpability proof

available to defendant here is different; nevertheless, it does

not lack in probative value or fail to establish Gombert's

connection to the crime.

Nor is our holding contrary to our ruling in People v

Schulz, where we determined that the trial court properly

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precluded evidence of third-party culpability (4 NY3d at 528).

At his trial for robbery in that case, the defendant sought to

admit a photograph of a third party who had committed several

robberies in the same general area before and after the robbery

for which the defendant was charged, and who allegedly bore a

resemblance to the defendant. We upheld the court's preclusion

of third-party culpability evidence in Schulz because nothing in

the defendant's proffer "show[ed] a modus operandi, a witness who

saw [the third party] at the scene[,] or even a connection

between the getaway car and [the third party]" (id. at 528). Put

simply, the third-party proffer there consisted of nothing more

than the fact that the third party had committed other crimes of

the same general type, but not necessarily sharing particularly

similar or unique features. By contrast, here, as we explained,

defendant has offered evidence of a unique modus operandi that

potentially connects Gombert to the crime, and the statements

Gombert allegedly made to Santoro -- as well as other proof --

connect him to the victim at the approximate time of her

disappearance. Thus, defendant's third-party proffer

sufficiently supplied the key elements that we found lacking in

Schulz. The trial court should have permitted defendant to

submit admissible proof at trial to support his third-party

culpability defense.

Although the evidence presented by the People was

arguably overwhelming, we cannot say, on these facts, that the

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error in curtailing defendant's ability to present a complete

defense through the introduction of third-party culpability

evidence was harmless (see People v Osorio, 75 NY2d 80, 87

[1989]; People v Crimmins, 36 NY2d 230, 242–243 [1975]).

Accordingly, the order of the Appellate Division should be

reversed and a new trial ordered.

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People v Anthony DiPippo

No. 11

FAHEY, J. (dissenting):

For the first time, we are allowing a theory of third-

party culpability to go forward based on an offer of proof

consisting entirely of hearsay. Defendant's offer of proof fell

far short of that presented in People v Primo (96 NY2d 351

[2001]), the only case before today in which this Court has held

that a trial court abused its discretion as a matter of law in

precluding such evidence. This decision imposes an undue

restraint upon the discretion of trial courts to weigh the

probative versus prejudicial value of third-party culpability

evidence and make a reasoned decision regarding its

admissibility. I respectfully dissent.

Howard Gombert's alleged statement to Joseph Santoro

was required to surmount a threshold evidentiary hurdle by

satisfying the four-pronged test of the hearsay exception for

declarations against penal interest. The first three elements of

that test were met. I disagree with the majority, however, that

Gombert's alleged statements to Santoro satisfied the final prong

-- that defendant presented "supporting circumstances independent

of the statement itself . . . to attest to its trustworthiness

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and reliability" (People v Settles, 46 NY2d 154, 167 [1978]).

Even under the more lenient standard applied when a defendant

seeks to introduce a declaration against interest as exculpatory

evidence (see People v Soto, 26 NY3d 455, 462 [2015]), the fourth

factor of the test, which is "the most important aspect of the

exception" (People v Shabazz, 22 NY3d 896, 897 [2013] [internal

quotation marks omitted]), was not met.

Defendant's proffered evidence of third-party

culpability fell into four categories. First, defendant sought

to introduce Gombert's alleged statements to Santoro. Second,

defendant sought to introduce other evidence allegedly connecting

Gombert to the crime, which consisted of the statements of Anita

Albano and Gombert's former girlfriend. Gombert's former

girlfriend told police that shortly after the victim's

disappearance, Gombert told her that he had given the victim a

ride to some unspecified place on some unspecified day around the

time that the victim went missing. Gombert did not tell her that

he had committed a crime or that he was involved in the victim's

disappearance. Further, although Albano testified at the

pretrial hearing, her testimony did not inculpate Gombert,

inasmuch as she testified that the red car she saw the victim

enter on the day of her disappearance was not the car of

Gombert's former girlfriend, and that Gombert was not the young

man whom Albano saw driving the red car. Third, defendant

offered statements from certain witnesses who told police that

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Gombert knew the victim and that the victim had offered to

babysit for Gombert. Finally, defendant sought to introduce

"reverse Molinuex" evidence regarding Gombert's history of sexual

assaults.

Every piece of evidence that defendant presented in an

attempt to demonstrate the reliability of Gombert's statements to

Santoro was hearsay. Gombert's statement to his former

girlfriend that he had given the victim a ride was hearsay, as

was his former girlfriend's statement to police itself.

Statements from witnesses asserting that Gombert knew the victim

and that she had offered to babysit were hearsay. The proffered

"reverse Molineux" evidence was also hearsay. Defendant offered

that proof through a defense investigator, an obviously

interested party. Defendant did not offer any statements, sworn

or unsworn, from Gombert's victims themselves.

To be clear, I am not suggesting that a defendant

seeking to introduce evidence of third-party culpability must

present all evidence in support of that application in admissible

form at the pretrial stage. Here, nothing was in admissible

form, except for the testimony of Albano, which did not support

defendant's application.

The quality of the proof the defendant offers must be

considered in evaluating whether the trial court abused its

discretion as a matter of law in precluding the evidence.

Defendant did not submit an affidavit from Gombert's former

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girlfriend, or any of the witnesses who defendant asserted could

establish Gombert's relationship with the victim. Defendant did

not present an affidavit from any of Gombert's victims to support

his reverse Molinuex application, and he further failed to

present an affidavit from the defense investigator who allegedly

interviewed these victims. In short, defendant asked the trial

court to admit Gombert's statement to Santoro not based upon

"sufficient competent evidence independent of the [statement

itself] to assure its trustworthiness and reliability" (People v

Brensic, 70 NY2d 9, 15 [1987]), but rather based upon

questionable hearsay.

Defendant has acknowledged that he will be required to

offer the live testimony of Gombert's victims and any other

appropriate witnesses upon retrial. In his pretrial application,

however, defendant did not indicate that any of these witnesses

were willing to testify at trial. Faced with the unreliable and

speculative nature of the evidence defendant offered in an

attempt to support the trustworthiness of Gombert's statement to

Santoro, the trial court did not abuse its discretion as a matter

of law in concluding that defendant failed to satisfy the fourth

prong of the Settles test (see Settles, 46 NY2d at 167).

Even assuming Gombert's alleged statements to Santoro

qualified as a declaration against penal interest, I nevertheless

cannot conclude that the trial court abused its discretion as a

matter of law in precluding evidence of third-party culpability.

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In Primo, we rejected the "clear link" standard for

admissibility of third-party culpability evidence that had been

employed by the Appellate Division, which generally required the

defendant to show a "clear link" between the third party and the

crime in question, in favor of a test "described in terms of

conventional evidentiary principles" (see Primo, 96 NY2d at 354-

355). Under that test, the trial court should conduct a

discretionary balancing of the probative value of the evidence

against its potential for "trial delay, undue prejudice to the

opposing party, confusing the issues or misleading the jury" (id.

at 355). We noted that, "[t]o the extent that the 'clear link'

standard implies no more than an abbreviation for the

conventional balancing test, it presents no problem" (id. at

356).

Even under the proper test, however, "remote evidence

of a third party's culpability -- though relevant -- will not be

sufficiently probative to outweigh the risk of trial delay, undue

prejudice or jury confusion" (id. at 356). We cautioned in Primo

that, in the context of third-party culpability evidence, the

"risks of delay, prejudice and confusion are particularly acute,"

and that if these risks are not "weighed against the probative

value of the evidence, the fact-finding process would break down

under a mass of speculation and conjecture" (id. at 356-357).

For these reasons, "[t]he admission of evidence of third-party

culpability may not rest on mere suspicion or surmise" (id. at

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357).

The evidence of third-party culpability defendant

offered here was far weaker than the evidence offered by the

defendant in Primo. There, the shooting victim acknowledged that

the third party was at the crime scene at the time of the

shooting. Significantly, a ballistics report linked the bullets

recovered from the crime scene to a gun used by the third party

two months later in an unrelated crime (see Primo, 96 NY2d at

353-354). We concluded that the probative value of the

ballistics report, "coupled with proof that [the third party] was

at the scene of the shooting, . . . plainly outweigh[ed] the

dangers of delay, prejudice and confusion" (id. at 357). We

therefore held that the trial court improperly precluded the

ballistics report as evidence of third-party culpability (see

id.).

Here, by contrast, there is no physical evidence

connecting Gombert to the crime, and no witness placing Gombert

with the victim on the day of her disappearance, let alone at the

crime scene. The reverse Molineux evidence presented by

defendant, although it points to Gombert as a heinous individual,

does not persuade me that the trial court abused its discretion

as a matter of law. Defendant's investigator allegedly spoke to

several of Gombert's victims, and they told the investigator that

Gombert only sometimes restrained their hands behind their backs

or shoved articles of clothing in their mouths during his sexual

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assaults (cf. People v Beam, 57 NY2d 241, 252 [1982] ["Although

there are minor differences in each attack, the pattern of the

initial encounter and the specifics of the sexual attacks, all of

which followed the same pattern, indicate a unique modus

operandi"]).

This Court has generally left the resolution of issues

surrounding third-party culpability to the discretion of the

trial court, unless the evidence of third-party culpability was

so unmistakably strong that it was an abuse of discretion for the

trial court not to allow the jury to hear it (see Primo, 96 NY2d

at 357). Where the defendant's proffer has fallen short of the

strong proof of third-party culpability presented in Primo, this

Court has not interfered with the discretionary determination of

the trial court (see People v King, -- NY3d -- [decided

herewith]; People v Gamble, 18 NY3d 386, 398-399 [2012], rearg

denied 19 NY3d 833 [2012]; People v Schulz, 4 NY3d 521, 529

[2005]). This Court should not interfere in those discretionary

determinations unless the evidence, like that presented in Primo,

is so compelling that the trial court clearly abused its

discretion as a matter of law in precluding it. I conclude that

the evidence offered by defendant here does not rise to that

level.

Although defendant will finally be required to present

proof of third-party culpability in admissible form at a new

trial, the trial court must otherwise exercise its discretion to

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ensure that "the fact-finding process [does not] break down under

a mass of speculation and conjecture" (Primo, 96 NY2d at 357).

The determination of admissibility can only be answered at trial.

The trial court should be allowed to exercise its discretion upon

retrial with respect to these issues. Faced with the prospect of

another appellate reversal, however, the trial court here, and

other trial courts attempting to comply with the Court's ruling

in the future, will be reluctant to do so.

Defendant's remaining contentions are without merit. I

would affirm the order of the Appellate Division.

* * * * * * * * * * * * * * * * *

Order reversed and a new trial ordered. Opinion by Judge Stein.

Judges Pigott, Rivera and Abdus-Salaam concur. Judge Fahey

dissents in an opinion. Chief Judge DiFiore and Judge Garcia

took no part.

Decided March 29, 2016

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