Former film producer Harvey Weinstein appears at a hearing in...

Former film producer Harvey Weinstein appears at a hearing in Manhattan Criminal Court on May 1. Credit: TNS/Pool

ALBANY — It’s a clash of progressive forces as New York State lawmakers debate rewriting criminal procedure law after the overturning of Harvey Weinstein’s sexual assault conviction.

Some legislators and women’s groups want to change the law to specifically allow prosecutors at sexual assault trials to bring up past incidents involving a defendant. A key lawmaker said the proposed bill is alive after she agreed to amend it to address colleagues’ concerns, but others question whether there is enough time to get it passed.

“It still has a chance. I should know better by Tuesday. Or Wednesday,” Assemb. Amy Paulin (D-Scarsdale) told Newsday late last week.

The push to get the bill through the state Legislature lost momentum because of concerns about fair trials and the fast-approaching end of the 2024 session, several lawmakers said.

Advocates’ efforts come after New York’s top court overturned Weinstein’s conviction in April. The Court of Appeals said the judge in Weinstein’s trial made the legal error of allowing testimony from women who said they were assaulted by Weinstein, a well-known Hollywood producer, but whose allegations were not part of the charges.

Advocates said the law should be changed to allow discussion of past acts because sexual assault cases are unlike any others. They said federal courts and about 16 states already allow it.

“Sex offenses, more than any others, involve one person’s testimony against another’s,” said Sen. Michael Gianaris (D-Astoria), the State Senate sponsor of the bill. “The incidents are often behind closed doors. There are no other witnesses. And a jury is called upon to decide who they believe. The opportunity to introduce a pattern of behavior by a perpetrator is particularly illuminating for a jury as they struggle to determine who to believe.”

The Legal Aid Society, the New York State Defenders’ Association and others are asking lawmakers not to “overreact” because of one celebrity case. They say such a change would make trials unfair, disproportionately hurt minority defendants and could be used later to justify similar changes in all sorts of matters, including burglary and robbery cases.

“It goes against the rules of evidence that have been around since” 1901, said Laurette Mulry, attorney-in-charge of Suffolk County’s Legal Aid bureau, which often represents clients who can’t afford a lawyer.

“It’s also undoing the whole idea of presumption of innocence,” Mulry told Newsday. “Because what you’re saying is if the person could have been guilty of this before, then they certainly could be guilty of this now.”

It’s an argument that seems to be gaining traction in a legislature dominated by Democrats who in the past five years have strengthened the rights of defendants and inmates and have been vocal supporters of sexual assault survivors.

The State Senate approved the bill by a vote of 55-4 last Wednesday. But a closed-door conference of Assembly Democrats held later that day “did not go well” because rank-and-file lawmakers raised numerous concerns, a source familiar with the discussions said.

As a result, the Assembly — traditionally more liberal on criminal justice matters than the Senate — is increasingly unlikely to follow suit, several sources said.

There’s not much time left to resolve things: The Legislature is slated to adjourn for the year on June 6.

Weinstein, 72, was convicted in New York in 2020 of a criminal sex act for forcibly performing oral sex on a TV and film production assistant in 2006, and rape in the third degree for an attack on an aspiring actress in 2013. He was sentenced to 23 years in prison.

He’s also been convicted in California in a different but similar case. Now, he’s headed for a new trial in New York after the judge in the case made decisions that “undermined” Weinstein’s ability to present a defense, the state Court of Appeals ruled in April.

“We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material … purpose,” the majority said in its decision.

The ban on introducing past events dates to the 1901 case known as Molineaux. But the so-called “Molineaux rule” does have several exceptions built in, established through years of case law.

Under the rule, prosecutors can use a defendant’s past acts not to show a tendency to commit a similar crime but to show a motive, opportunity, common scheme, knowledge and other factors.

State Sen. Anthony Palumbo (R-New Suffolk) tried during Senate debate to amend the proposed bill to simply enshrine the Molineaux exceptions in state statute.

“It’s in case law. It’s been tested in courts. It’s been around 100 years,” Palumbo said — shortly before Democrats, who outnumber Republicans 2-1 in the chamber, defeated his amendment.

Palumbo warned that the Democratic version of the bill could be fatally flawed because it includes one simple but important passage: It says past acts can be used to show a person had a “propensity” to engage in similar wrongful acts.

Palumbo said the word will prove “extremely problematic” if the bill is enacted and later challenged in court.

Paulin acknowledged the phrasing is “problematic for a lot” of fellow Democrats, who said so during the closed-door meeting last Wednesday. She said she’s agreed to drop the passage and leaders were polling legislators to see if they would support an amended bill. Paulin said there’s enough time to change the bill and pass it before adjournment.

“Two weeks is a lifetime in the Assembly,” Paulin said. “If there’s agreement to go ahead, time won’t be a problem.”

ALBANY — It’s a clash of progressive forces as New York State lawmakers debate rewriting criminal procedure law after the overturning of Harvey Weinstein’s sexual assault conviction.

Some legislators and women’s groups want to change the law to specifically allow prosecutors at sexual assault trials to bring up past incidents involving a defendant. A key lawmaker said the proposed bill is alive after she agreed to amend it to address colleagues’ concerns, but others question whether there is enough time to get it passed.

“It still has a chance. I should know better by Tuesday. Or Wednesday,” Assemb. Amy Paulin (D-Scarsdale) told Newsday late last week.

The push to get the bill through the state Legislature lost momentum because of concerns about fair trials and the fast-approaching end of the 2024 session, several lawmakers said.

WHAT TO KNOW

  • New York State legislators are debating whether to rewrite criminal procedure law in the wake of the overturning of Harvey Weinstein’s sexual assault conviction.
  • Some legislators and women’s groups want to change the law to specifically allow prosecutors at sexual assault trials to bring up past incidents involving a defendant.
  • A key lawmaker said the proposed bill is alive, but others question whether there will be enough time to get it passed before June 6, when the legislature is slated to adjourn.

Advocates’ efforts come after New York’s top court overturned Weinstein’s conviction in April. The Court of Appeals said the judge in Weinstein’s trial made the legal error of allowing testimony from women who said they were assaulted by Weinstein, a well-known Hollywood producer, but whose allegations were not part of the charges.

Advocates said the law should be changed to allow discussion of past acts because sexual assault cases are unlike any others. They said federal courts and about 16 states already allow it.

“Sex offenses, more than any others, involve one person’s testimony against another’s,” said Sen. Michael Gianaris (D-Astoria), the State Senate sponsor of the bill. “The incidents are often behind closed doors. There are no other witnesses. And a jury is called upon to decide who they believe. The opportunity to introduce a pattern of behavior by a perpetrator is particularly illuminating for a jury as they struggle to determine who to believe.”

The Legal Aid Society, the New York State Defenders’ Association and others are asking lawmakers not to “overreact” because of one celebrity case. They say such a change would make trials unfair, disproportionately hurt minority defendants and could be used later to justify similar changes in all sorts of matters, including burglary and robbery cases.

“It goes against the rules of evidence that have been around since” 1901, said Laurette Mulry, attorney-in-charge of Suffolk County’s Legal Aid bureau, which often represents clients who can’t afford a lawyer.

“It’s also undoing the whole idea of presumption of innocence,” Mulry told Newsday. “Because what you’re saying is if the person could have been guilty of this before, then they certainly could be guilty of this now.”

It’s an argument that seems to be gaining traction in a legislature dominated by Democrats who in the past five years have strengthened the rights of defendants and inmates and have been vocal supporters of sexual assault survivors.

The State Senate approved the bill by a vote of 55-4 last Wednesday. But a closed-door conference of Assembly Democrats held later that day “did not go well” because rank-and-file lawmakers raised numerous concerns, a source familiar with the discussions said.

As a result, the Assembly — traditionally more liberal on criminal justice matters than the Senate — is increasingly unlikely to follow suit, several sources said.

There’s not much time left to resolve things: The Legislature is slated to adjourn for the year on June 6.

Weinstein, 72, was convicted in New York in 2020 of a criminal sex act for forcibly performing oral sex on a TV and film production assistant in 2006, and rape in the third degree for an attack on an aspiring actress in 2013. He was sentenced to 23 years in prison.

He’s also been convicted in California in a different but similar case. Now, he’s headed for a new trial in New York after the judge in the case made decisions that “undermined” Weinstein’s ability to present a defense, the state Court of Appeals ruled in April.

“We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material … purpose,” the majority said in its decision.

The ban on introducing past events dates to the 1901 case known as Molineaux. But the so-called “Molineaux rule” does have several exceptions built in, established through years of case law.

Under the rule, prosecutors can use a defendant’s past acts not to show a tendency to commit a similar crime but to show a motive, opportunity, common scheme, knowledge and other factors.

State Sen. Anthony Palumbo (R-New Suffolk) tried during Senate debate to amend the proposed bill to simply enshrine the Molineaux exceptions in state statute.

“It’s in case law. It’s been tested in courts. It’s been around 100 years,” Palumbo said — shortly before Democrats, who outnumber Republicans 2-1 in the chamber, defeated his amendment.

Palumbo warned that the Democratic version of the bill could be fatally flawed because it includes one simple but important passage: It says past acts can be used to show a person had a “propensity” to engage in similar wrongful acts.

Palumbo said the word will prove “extremely problematic” if the bill is enacted and later challenged in court.

Paulin acknowledged the phrasing is “problematic for a lot” of fellow Democrats, who said so during the closed-door meeting last Wednesday. She said she’s agreed to drop the passage and leaders were polling legislators to see if they would support an amended bill. Paulin said there’s enough time to change the bill and pass it before adjournment.

“Two weeks is a lifetime in the Assembly,” Paulin said. “If there’s agreement to go ahead, time won’t be a problem.”

NCC faculty suing school … MacArthur new flights … Going for the gold Credit: Newsday

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NCC faculty suing school … MacArthur new flights … Going for the gold Credit: Newsday

Updated 15 minutes ago Riverhead teachers protest ... NCC faculty suing school ... Primary day ... Jones Beach adds new artists

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