In State v. Pena, Mr. Pena received some good news when the appellate division held that testimony of a prior case regarding Pena’s penis was prejudicial. In this case Mr. Pena was charged with first-degree sexual assault when it was alleged that he inserted his finger inside her. In this case the victim, E.D. claimed that she could identify him based among other things on the abnormally big penis.
At trial the defendant presented pictures of his 4-inch penis and argued that in fact he had not an abnormally large penis but an abnormally small one. Initially, the trial judge ruled that the pictures were not relevant, but on interlocutory appeal, the pictures were admitted at trial.
Unfortunately, at trial the trial judge also allowed the prosecutor to introduce evidence regarding a prior lewdness conviction in which Mr. Pena’s seize was an issue. In that case the witness reported that while erect Mr. Pena’s penis was 8” in length.
The appellate division reversed the conviction holding that the trial court misapplied and did not make proper findings as to why the other crimes 404b evidence should have been admitted. Because it appeared from the record that the trial judge allowed the evidence to refute the defendant’s contention that he had a small (identity) penis.
This reversal seems to be of questionable validity since 404b evidence can be introduced to prove identity, and at first glance it appears that the trial judge made a correct call. Obviously, this conviction did not sit well with the appellate division panel and hence, this is what they hung their reversal on.
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