2 No. 77
The People &c.,
Respondent,
v.
Kenrick Primo,
Appellant.
_________________________________________________________________
2001 NY Int. 73
June 12, 2001
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Sally Wasserman, for appellant.
Joseph Huttler, for respondent.
The Legal Aid Society, Criminal Appeals Bureau et al., amici curiæ.
_________________________________________________________________
ROSENBLATT, J.:
Defendant was charged with attempted murder in connection with a
shooting. Seeking to show that someone else committed the crime, he
moved to introduce evidence that, two months after the shooting, a
person present at the shooting had used the same gun in an unrelated
crime. On the appeal before us, we consider the appropriate standard
for the admission of evidence of this type.
In November 1996, police responded to a report of a shooting at a deli
in Brooklyn. Upon arriving, they found Michael Cleland lying on the
floor, bleeding from several gunshot wounds. Police recovered shell
casings and fragments of bullets. Several days later, Cleland gave the
police his account of the crime. He named defendant as the shooter. He
knew defendant from the neighborhood, and there was bad blood between
them. Cleland told of making a purchase at the deli, after which he
came face-to-face with defendant and several of defendant's friends. A
dispute ensued. As Cleland turned to leave the store, he heard
gunshots and felt a pain in his back. He spun around and allegedly saw
defendant holding a gun as defendant's friends fled. According to
Cleland, defendant fired at him two more times and missed. As Cleland
lay on the floor, defendant allegedly fired another two or three
rounds, hitting Cleland in both legs, and ran off.
Upon learning that he was wanted by the police, defendant turned
himself in. Police placed him under arrest. Waiving his Miranda
SNIPPETS:
Defendant was charged with attempted murder in connection with a shooting.
Seeking to show that someone else committed the crime, he moved to introduce evidence that,
police responded to a report of a shooting at a deli in Brooklyn.
Upon arriving, they found Michael Cleland lying on the floor, bleeding from several gunshot
Cleland told of making a purchase at the deli, after which he came face-to-face with
As Cleland lay on the floor, defendant allegedly fired another two or three rounds, hitting
the defense acknowledged that defendant was at the scene but denied his involvement in the
the People turned over to the defense a report linking the bullets to a gun used by a man
defendant asserted that Maurice Booker was "Moe" who had been at the deli at the time of the
The ballistics report, defendant argued, supported his contention that someone else -- Booker
The court conditionally granted the People's motion to preclude, but assured the defense that
The jury convicted the defendant of Attempted Murder in the Second Degree.
The "clear link" standard employed by the Appellate Division appears to have been gleaned
"hile evidence tending to show that another party might have committed the crime charged
The Greenfield court, however, said nothing to suggest that it was fashioning a new or
the phrase "clear link" was not used in New York until People v Aulet (111 AD2d 822 1985)).
This appeal presents us with the opportunity to determine whether the "clear link"
Evidence "of merely slight, remote or conjectural significance" will ordinarily be
These catch phrases merely reinforce the notion that remote evidence of a third party's
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