
    The People of the State of New York, Respondent, v Sebastian Ventimiglia, Also Known as Benjamin Ventimiglia, Appellant.
    The People of the State of New York, Respondent, v Mario Russo, Appellant.
    Argued February 10, 1981;
    decided March 31, 1981
    
      POINTS OF COUNSEL
    
      Irving Anolik for Sebastian Ventimiglia, appellant.
    I. The Trial Judge’s refusal to grant a mistrial after defendant Ardito’s case had been severed, deprived appellant of a fair trial because most of the evidence in the proceedings had been admitted solely against Ardito and it was inevitable that the jury would thereafter utilize that evidence in their deliberations, irrespective of any instruction to the contrary. (United States v Grunewald, 233 F2d 556, 353 US 391; People v Marshall, 306 NY 223; People v Jusino, 10 AD2d 618; People v Taylor, 2 AD2d 977; People v Owens, 22 NY2d 93; United States v Kelly, 349 F2d 720; Kotteakos v United States, 328 US 750; United States v Varelli, 407 F2d 735; United States v Branker, 395 F2d 881.) II. The trial court erred in refusing to marshal the evidence. (People v Rivera, 60 AD2d 852; People v Mabry, 58 AD2d 897; People v Taylor, 45 AD2d 953; People v Bell, 38 NY2d 116; People v Williamson, 40 NY2d 1073; People v Jackson, 39 AD2d 557; People v Miles, 48 AD2d 706.) III. The trial court impermissibly permitted the People to introduce evidence of uncharged crimes and irrelevant evidence of a most gruesome and prejudicial nature. (People v Molineux, 168 NY 264; People v Namer, 309 NY 458; People v Napoletano, 58 AD2d 83; Shepard v United States, 290 US 96; People v Zackowitz, 254 NY 192; People v Jackson, 39 NY2d 64; People v Montanez, 41 NY2d 53; People v Pobliner, 32 NY2d 356; People v Rial, 25 AD2d 28; People v Silverman, 252 App Div 149.) IV. The misconduct of the prosecutor deprived appellant of his State and Federal constitutional rights to due process and to a fair trial. (People v Arce, 42 NY2d 179; People v Baker, 23 NY2d 307; Donnelly v De Christoforo, 416 US 637; People v Matthews, 33 AD 2d 679; People v Migliori, 273 App Div 915; People v Norton, 285 App Div 1165; United States v Lopez, 584 F2d 1175; People v Mirenda, 23 NY2d 439; People v Rogers, 59 AD2d 916; People v Manson, 63 AD2d 686.)
    
      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
    I. The trial court’s denials of the motions for mistrial and severance were correct. (Bruton v United States, 391 US 123; People v Payne, 35 NY2d 22; 
      People v Owens, 22 NY2d 93; People v Kampshoff, 53 AD2d 325, 433 US 911; United States v Knife, 592 F2d 472; United States v Milham, 590 F2d 717; United States v Lyles, 593 F2d 182; United States v McPartlin, 595 F2d 1321; United States v Martin, 599 F2d 880; People v Marshall, 306 NY 223.) II. The trial court’s instructions to the jury were correct in all respects. (People v Culhane, 45 NY2d 757; People v Harris, 69 AD2d 843; People v Williamson, 51 AD2d 843; United States v Kahaner, 317 F2d 459, 375 US 836; United States v Caramandi, 415 F Supp 443, 538 F2d 321; United States v Dockery, 417 F2d 330; United States v Lamont, 565 F2d 212, 435 US 914; United States v Armedo-Sarmiento, 545 F2d 785, 430 US 917; People v Goods, 75 AD2d 650; People v Carney, 73 AD2d 972.) III. The testimony as to appellant’s favorite “dumping spot” was properly admitted. (People v Vails, 43 NY2d 364; People v McCray, 60 AD2d 895; People v Sorenson, 70 AD2d 892; People v Willis, 52 AD2d 972; People v Mitchell, 40 AD2d 117; People v Sostre, 70 AD2d 40, 51 NY2d 958.) IV. The real and demonstrative evidence was properly received. (People v Pobliner, 32 NY2d 356; People v De Tore, 34 NY2d 199, cert den sub nom. Wedra v New York, 419 US 1025; People v Arca, 72 AD2d 205; People v McKown, 71 AD2d 730; People v Corbett, 68 AD2d 772; People v Culhane, 45 NY2d 757; People v Sears, 58 AD2d 693; People v Rial, 25 AD2d 28; Public Operating Corp. v Weingart, 257 App Div 379.) V. There was no prosecutorial misconduct. (People v Cole, 54 AD 643; People v Murphy, 53 AD2d 937; People v Brosnan, 32 NY2d 254; People v Shields, 58 AD2d 94, 46 NY2d 764; People v Alovic, 68 AD2d 928; People v Bryant, 67 AD2d 987; People v Utley, 45 NY2d 908; People v Cicchetti, 44 NY2d 803.) VI. Any errors which may have been committed at any stage of the proceeding were harmless, as a matter of law. (People v Crimmins, 36 NY2d 230; People v Cruz, 47 NY2d 838; People v Almestica, 42 NY2d 222.)
    
      Richard J. Oddo, Mario Melerba and Nicholas R. Canizio for Mario Russo, appellant.
    I. The refusal of the lower court to grant appellant a mistrial after the severance of defendant Ardito deprived appellant of a fair trial and due process of law. (People v Payne, 35 NY2d 22; People v Mallette, 59 AD2d 199; People ex rel. Lehman v Moorehead, 272 NY 531; People v Marshall, 306 NY 223; People v Jusino, 10 AD2d 618; People v Taylor, 2 AD2d 977; People v Owens, 22 NY2d 93; United States v Kelly, 349 F2d 720; United States v Varelli, 407 F2d 735; United States v Branker, 395 F2d 881.) II. Appellant was deprived of a fair trial and due process of law by the admission of a mass of irrelevant and prejudicial testimony and exhibits. (People v Sandoval, 34 NY2d 371; People v Harris, 136 NY 423; Pierson v People, 79 NY 424; Shepard v United States, 290 US 96; United States v Check, 582 F2d 668; United States v San Juan, 545 F2d 314; People v Vails, 43 NY2d 364; People v Fiore, 34 NY2d 81; People v Grutz, 212 NY 72; People v Formato, 286 App Div 357.) III. The misconduct of the prosecutor deprived appellant of his State and Federal constitutional rights to due process and to a fair trial. (People v Arce, 42 NY2d 179; People v Hetenyi, 304 NY 80; People v Burton, 46 AD2d 774; Desmond v United States, 345 F2d 225; Griffin v California, 380 US 609; People v Ashwal, 39 NY2d 105.) IV. The lower court committed numerous errors of omission and commission in its charge to the jury. (People v Williamson, 51 AD2d 843; Schaffer v United States, 362 US 511; People v Salemi, 309 NY 208; People v Bell, 38 NY2d 116; People v Corey, 157 NY 332; People v Rodriquez, 61 AD2d 914; People v Mabry, 58 AD2d 897; People v Mussenden, 308 NY 558; Keeble v United States, 412 US 205.)
    
      Patrick Henry, District Attorney (Vincent A. Malito of counsel), for respondent.
    I. The trial court’s denials of the motions for mistrial and severance were correct. (Bruton v United States, 391 US 123; People v Payne, 35 NY2d 22; People v Owens, 22 NY2d 93; People v Kampshoff, 53 AD2d 325, 433 US 911; United States v Knife, 592 F2d 472; United States v Milham, 590 F2d 717; United States v Lyles, 593 F2d 182; United States v Davis, 597 F2d 648; United States v McPartlin, 595 F2d 1321; United States v Martin, 599 F2d 880.) II. The testimony as to appellant’s favorite “dumping spot” was properly admitted. (People v Vails, 43 NY2d 364; People v McCray, 60 AD2d 895; People v Sorenson, 70 AD2d 892; People v Willis, 52 AD2d 972; People v Mitchell, 40 AD2d 117; People v Sostre, 70 AD2d 40, 51 NY2d 958.) III. The real and demonstrative evidence was properly received. (People v Pobliner, 32 NY 2d 356; People v De Tore, 34 NY2d 199, cert den sub nom. Wedra v New York, 419 US 1025; People v Arca, 72 AD 2d 205; People v McKown, 71 AD2d 730; People v Caprio, 47 AD2d 1; People v Hampton, 38 AD2d 772; People v Corbett, 68 AD2d 772; People v Culhane, 45 NY2d 757; People v Sears, 58 AD2d 693; People v Rial, 25 AD2d 28.) IV. There was no prosecutorial misconduct. (People v Cole, 54 AD2d 643; People v Murphy, 53 AD2d 937; People v Brosnan, 32 NY2d 254; People v Shields, 58 AD2d 94; People v Alovic, 68 AD2d 928; People v Bryant, 67 AD2d 987; People v Williams, 46 NY2d 1070; People v Utley, 45 NY2d 908; People v Cicchetti, 44 NY2d 803.) V. The trial court’s instructions to the jury were correct in all respects. (People v Culhane, 45 NY2d 757; People v Williamson, 51 AD2d 843; United States v Caramandi, 415 F Supp 443, 538 F2d 321; United States v Dockery, 417 F2d 330; United States v Lamont, 565 F2d 212, 435 US 914; United States v Armedo-Sarmiento, 545 F2d 785; People v Goods, 75 AD2d 650; People v Carney, 73 AD2d 972; People v Williams, 75 AD2d 717; People v Rivera, 69 AD2d 868; People v Vargas, 74 AD2d 859.) VI. Any errors which may have been committed at any stage of the proceeding were harmless, as a matter of law. (People v Crimmins, 36 NY2d 230; People v Cruz, 47 NY2d 838; People v Almestica, 42 NY2d 222.)
   OPINION OF THE COURT

Meyer, J.

Where defendants charged with murder, kidnapping and conspiracy have stated as part of their planning that they have a place for disposing of the body “where we put people * * * and they haven’t found them for weeks and months”, the statement is admissible because its probative value as to premeditation of the murder and as to the plan of the conspiracy outweighs the prejudice resulting from the admission implicit in the statement that defendants have committed prior murders. In view of the potential for prejudice in such testimony, however, a prosecutor who intends to adduce it before the jury should first obtain a ruling from the Trial Judge by offering the testimony out of the presence of the jury, and the Trial Judge should exclude any part of it that is not directly probative of the crimes charged. While that was not done in. the instant case the portion of the statement that may have been excluded had it been done is essentially cumulative of the part which was admissible. That being so, and the other contentions urged by defendants not constituting grounds for reversal, either because not preserved, not error or not an abuse of discretion, the order of the Appellate Division affirming their convictions should be affirmed.

Defendants were indicted together with Victoria Ardito and charged with the murder of her lover, Benjamin Mattana. The theory of the prosecution was that Ardito had hired defendants to kill Mattana because he was about to leave her for another woman. During trial Ardito became incompetent to stand trial, and the case against her was severed.

The prime witness for the prosecution was John Dellacona, who claimed that he had been impressed into service by defendants who made him their driver. He gave a complete account of the events leading up to the murder of Benjamin Mattana, which took place in the early morning hours of April 28,1976. According to Dellacona, Ardito had agreed to lend him money and had instructed him to meet her at 7:30 p.M. on April 27, 1976 at Exit 19 of the Southern State Parkway. At the meeting place Dellacona found not only Ardito but also defendants Ventimiglia and Russo. Together they drove to the parking lot of a nearby bowling alley, where defendants made clear to Dellacona that he was to participate in a murder and that his participation was not a voluntary matter.

Benjamin Mattana operated a motorcycle shop, in Lynbrook. Dellacona testified that Ventimiglia first made a short trip from the bowling alley to the motorcycle shop in order to decide whether the murder could be accomplished there. Concluding that the shop was too busy, Ventimiglia returned to the bowling alley parking lot and together Dellacona, Ventimiglia, Russo and Ardito departed for Mattana’s residence in Lloyd Harbor.

At trial Dellacona gave detailed testimony about discussions between the defendants as to who was to kill Mattana and where and how it was to be done. Because Ardito did not want Mattana killed in the house, they devised a plan whereby Mattana would be taken to a desolate area where the murder would go unnoticed. The plan was for defendants to hide in Mattana’s house until he came home and retired for the evening with Ardito, then burst into the bedroom and, pretending that their only purpose was to rob the safe in Mattana’s motorcycle shop, to demand the keys to the shop and the combination of the safe. Russo was then to “force” Ardito to accompany him to the shop, while Ventimiglia remained at the house with Mattana. After opening the safe and removing its contents, Russo was to call Ventimiglia at Mattana’s house and inform him that the safe would not open, after which Ventimiglia would instruct them to return to the house so that Ventimiglia and Russo could take Mattana back to the motorcycle shop and force him to open the safe. The latter statement would, of course, be mere pretext; Mattana was to be taken from his house to be murdered.

Dellacona’s recitation of the discussion between and with defendants concerning where the murder was to take place is the subject of this appeal. As ultimately detailed before the jury it was as follows: “Benny said that they would take him [Mattana] to ‘their spot’. Mario said, ‘Yeah, it’s a good idea, we’ll take him over there.’ I had said, ‘You mean you done it before?’ and Benny said, ‘Yeah, we did it before.’ Mario said, ‘Yeah, just a couple of times’ and like snickered. Ben then said to me, ‘Junior, we have a spot over by — you know where the Belt Parkway is?’ I said, ‘Yeah’. He said, ‘Right over there by the dumps, we have a spot where we put people there and they haven’t found them for weeks and months.’ ”

Defendants objected that “testimony of another alleged murder committed by Mr. Russo and Mr. Ventimiglia” was inadmissible and moved for a mistrial. Conceding that the statements were declarations by defendants implying a prior crime, the District Attorney argued that they were nevertheless admissible because they showed that the reason the defendants had chosen to commit the murder in the particular spot they did, some 30 miles from Mattana’s home, was the possibility that his body would decompose before it could be discovered, that the statements related to the “where, why and how the murder was committed in the very remote section * * * where * * * it was carried out.” The Trial Judge overruled the objection not only when first made, but also when repeated as part of a motion for a mistrial at the end of the People’s case and when at the jury’s request the testimony was reread to them during deliberation.

The remainder of the testimony need not be detailed, except to note, that Dallacona’s account of what actually happened thereafter showed that while the events did not occur exactly as planned, the essentials of the plan were carried out. Dellacona drove the group to Howard Beach, where Mattana was ordered out of the car and led into the tall weeds of the marshes bordering Jamaica Bay. Dellacona heard several “pops” coming from the direction of the weeds, and when Ventimiglia returned he related that Mattana had tried to escape and it had taken several bullets to kill him. Evidence from other witnesses corroborative of Dellacona’s testimony was also presented. The jury found defendants guilty of second degree murder, first degree kidnapping and first degree conspiracy and the Appellate Division affirmed.

The rule excluding evidence of uncharged crimes is based upon the human tendency more readily “to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime” (People v Molineux, 168 NY 264, 313; People v Allweiss, 48 NY2d 40, 47; see People v Zackowitz, 254 NY 192, 198) and is intended to eliminate the danger that a jury may convict to punish the person portrayed by the evidence before them even though not convinced beyond a reasonable doubt of his guilt of the crime of which he is charged.

The rule is not an absolute, however. Its policy of protection against potential prejudice gives way when evidence of prior crime is probative of the crime now charged (People v Allweiss, supra; People v Vails, 43 NY2d 364; People v Jackson, 39 NY2d 64). There is no litmus paper test for determining when the probative value of the evidence outweighs its potential for prejudice. Attempts to categorize situations in which evidence of prior crime is admissible have yielded Molineux’ well-known listing (168 NY, at p 293) of “(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial”, but even that listing is acknowledged to be “merely illustrative” (People v Vails, supra, at p 368) and “not exhaustive” (People v Santarelli, 49 NY2d 241, 248) or capable of statement with “categorical precision” (People v Molineux, supra, at p 293).

Efforts to quantify the degree of probativeness necessary for admission establish that the evidence must be of more than “slight value” (People v Allweiss, supra, at p 47), but the authorities are not in agreement concerning whether it must be “highly probative” (id., at pp 47 and 49), simply “directly probative” (People v Vails, supra, at p 368; People v Jackson, supra, at p 68), or “substantially relevant” (McCormick, Evidence [2d ed], § 190, p 447), phrases which are themselves not entirely distinguishable. In final analysis the process is one of balancing in which both the degree of probativeness and the potential for prejudice of the proffered evidence must be weighed against each other (People v Santarelli, supra; People v Allweiss, supra). Factors which play a part in measuring probative value are “the degree to which the evidence persuades the trier of fact that the particular fact exists and the [logical] distance of the particular fact from the ultimate issues of the case” (Dolan, Rule 403: The Prejudice Rule in Evidence, 49 So Cal L Rev 220, 233). Further, as the Supreme Court of California noted in People v Stanley (67 Cal 2d 812, 818-819): “On the issue of probative value, materiality and necessity are important. The court should not permit the admission of other crimes until it has ascertained that the evidence tends logically and by reasonable inference to prove the issue upon which it is offered, that it is offered on an issue material to the prosecution’s case, and is not merely cumulative.” Important in the weighing process will also be how the evidence comes into the case, that is, whether at the instance of the People initially, or in rebuttal to a defense offered by defendant (People v Tas, 51 NY2d 915; People v Santarelli, supra; see People v Allweiss, supra).

Against that background, the first two and last two sentences of the testimony here in issue were unquestionably admissible. The crimes with which defendants were charged included intentional murder and conspiracy. The first two sentences constitute direct evidence of agreement between Russo and Ventimiglia, but not of an agreement to kill. The last two sentences made clear that defendants had agreed to take Mattana to their “spot” at Howard Beach for one reason only: to kill him. Together the four sentences bore directly on issues material to the prosecution’s case: that there was an agreement between Russo arid Ventimiglia and that the agreement was to kill and to do so in a way that might avoid discovery. Recounting as they did defendants’ admissions as to what they planned and why, the four sentences compellingly demonstrate both premeditation and conspiracy to murder. Moreover, the prosecutor’s reference to the “where, why and how the murder was committed in the very remote section” where it was, while not including the words “premeditation” and “agreement”, sufficiently presented the purposes for which the testimony was offered as the purposes for which we now hold the Trial Judge correctly admitted it, to withstand defendants’ argument (predicated on the holding of People v Zackowitz, 254 NY 192, 199-200, supra) that to sustain admission of the evidence is to treat them unfairly. Because the sentences referred to were directly related to ultimate issues in the case and as admissions by defendants were strongly persuasive and, therefore, not merely cumulative, we conclude that the Trial Judge did not err in admitting them.

Considered separately the third and fourth sentences of the testimoriy quoted above refer only to prior killings by defendants and should have been excluded because not relevant to or in any way probative of the charges being tried. The Trial Judge may have regarded them as “inextricably interwoven” in the conversation Dellacona was reciting within the meaning of People v Vails (43 NY2d 364, 368, supra), but the Vails holding does not make evidence admissible simply because it is a part of conversation other parts of which are admissible. To be inextricably interwoven in the Vails sense the evidence must be explanatory of the acts done or words used in the otherwise admissible part of the evidence. Here the third and fourth sentences were unnecessary to an understanding of the other parts of the testimony and should therefore, have been excluded. The error is not reversible, however, because the necessary implication of the fifth and sixth sentences put before the jury the fact that defendants had murdered more than once before (“we put people there and they haven’t found them for weeks and months” [emphasis supplied]).

While that disposes of the issues on this appeal, we deem it proper to add some thoughts concerning the procedure to be followed in cases involving potentially prejudicial testimony such as that considered above. In People v Santarelli (49 NY2d 241, 249, supra), we noted the particularity with which a Trial Judge should evaluate (indeed, parse would be a better word) such evidence. When a prosecutor, knowing that such evidence is to be presented, waits until objection is made when it is offered during trial before informing the court of the basis upon which he considers it to be admissible, there is unfairness to the defendant, even if his objection is sustained, in view of the questionable effectivness of cautionary instructions in removing prior crime evidence from consideration by the jurors. There is, moreover, a greater probability of error, and consequent waste of scarce judicial resources, when evidentiary rulings are made during trial than in the more relaxed atmosphere of an inquiry out of the presence of the jury. Whether some time prior to trial, just before the trial begins or just before the witness testifies will depend upon the circumstances of the particular case, but at one of those times the prosecutor should ask for a ruling out of the presence of the jury at which the evidence to be produced can be detailed to the court, either as an offer of proof by counsel or, preferably, by presenting the live testimony of the witness (Dolan, op. cit., supra, 49 So Cal L Rev, at p 255; Rothblatt and Leroy, The Motion in Limine in Criminal Trials: A Technique for the Pretrial Exclusion of Prejudicial Evidence, 60 Ky LJ 611; Ann., 63 ALR3d 311). The court should then assess how the evidence came into the case and the relevance and probativeness of, and necessity for it against its prejudicial effect, and either admit or exclude it in total, or admit it without the prejudicial parts when that can be done without distortion of its meaning (Dolan, op. cit., supra, at pp 254-255).

For the foregoing reasons, the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

In each case: Order affirmed. 
      
      . Denial of a mistrial after severing the trial as to defendant Ardito was not error in view of the fact that much of the testimony as to her did not relate to defendants and of the Trial Judge’s careful instructions to the jury as to what testimony should be excluded. Admission of the photographs, shirt and telephone chart were well within discretionary bounds. The reference in the prosecutor’s summation to defendants’ privilege not to testify was rendered harmless, both defendants having specifically requested the Trial Judge to charge that the jury could draw no inference from their not testifying (CPL 300.10, subd 2). Other claimed errors concerning the prosecutor’s summation and the court’s charge either were not preserved or are groundless.
     
      
      . Defendant Ventimiglia is also known as Benjamin Ventimiglia and was referred to throughout Dellacona’s testimony as Benny or Ben. The “spot” referred to was shown by later testimony to be located at Howard Beach.
     