Opinion
November 20, 1995
Appeal from the Supreme Court, Queens County (Clabby, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
A branch of Fleet Bank mistakenly credited the account of one of the defendant's businesses with $38,592. The defendant withdrew the money and refused to return it even after being informed of the error, contending that he was expecting payment of substantially the same amount in a business deal. The defendant was then charged with and convicted of grand larceny in the third degree.
The court erred in admitting into evidence four civil judgments entered against the defendant and allowing the People to use them, pursuant to People v Molineux ( 168 N.Y. 264), to show intent, motive, or lack of mistake. The judgments were not related to the alleged larceny and the defendant made no effort to use the money the bank mistakenly credited to repay the judgments (cf., Matter of Brandon, 55 N.Y.2d 206; People v Fenner, 155 A.D.2d 946). The court's ruling allowing the People to use the judgments in its direct case, and the defendant's resulting attempts to explain the different circumstances underlying the judgments, diverted the jury's attention from determining whether the defendant was guilty of the charged offense based on relevant, material evidence. The error of allowing the People to use the judgments on their direct case was not ameliorated by the court's belated and insufficient supplemental instructions.
The court also erred in allowing the civil judgments to be used on cross-examination pursuant to People v Sandoval ( 34 N.Y.2d 371). The civil judgments cannot be characterized as bad or immoral acts or acts involving moral turpitude that would allow them to be used to question the defendant's credibility (see, People v Gray, 84 N.Y.2d 709; People v Buggs, 109 A.D.2d 1052; People v Montlake, 184 App. Div. 578).
Accordingly, a new trial is warranted. In light of this determination, we do not reach the defendant's remaining contentions. O'Brien, J.P., Pizzuto, Santucci and Krausman, JJ., concur.