| People v Agina |
| 2010 NY Slip Op 04802 [74 AD3d 831] |
| June 1, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v AlaaAgina, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and KarenWigle Weiss of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.)rendered November 21, 2005, convicting him of attempted assault in the first degree, assault inthe second degree, and unlawful imprisonment in the first degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
According to the testimony of the complainant, who was the defendant's wife, the defendant,in a fit of jealous rage, assaulted her over the course of a 12-hour period.
The defendant's challenge to the legal sufficiency of the evidence with respect to hisconviction of attempted assault in the first degree is unpreserved for appellate review (seeCPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we findthat it was legally sufficient to establish that the defendant attempted to seriously andpermanently disfigure the complainant (see Penal Law §§ 110.00, 120.10[2]; cf. People v Whyte, 47 AD3d852, 853 [2008]; People v Rivera, 268 AD2d 538, 539 [2000]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the jury'sopportunity to view the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt on this count was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
Nonetheless, the defendant is entitled to a new trial because the Supreme Court, on thePeople's case-in-chief, improperly admitted testimony from the defendant's former wiferegarding the underlying facts of a prior incident in which the defendant assaulted her.
Evidence of similar uncharged crimes has probative value, but as a general rule is excludedbecause it may induce a jury to base a finding of guilt on collateral matters or may induce [*2]the jury to convict a defendant because of his past (see People vHudy, 73 NY2d 40, 54 [1988]; People v Alvino, 71 NY2d 233, 241 [1987]). If theonly purpose is to show bad character or propensity towards crime, it is not admissible "becausethere is a very real danger that the trier of fact will overestimate its significance" (People vHudy, 73 NY2d at 55; see People v Vargas, 88 NY2d 856, 858 [1996]; People vAlvino, 71 NY2d at 241). Evidence of prior uncharged crimes may be received, however, ifit helps to establish some element of the crime under consideration or if there is a recognizedexception to the general rule (see People v Alvino, 71 NY2d at 241). Such evidence maybe relevant to show intent, motive, knowledge, common scheme or plan, or identity of thedefendant, for example (id. at 242; see People v Molineux, 168 NY 264, 293[1901]). The proponent of the evidence must "identify some issue, other than mere criminalpropensity, to which the evidence is relevant" (People v Hudy, 73 NY2d at 55). Thisthreshold matter—identification of an issue other than propensity to which the evidencepertains—is a question of law, not discretion (id.; see People v Alvino, 71NY2d at 242). Once this threshold showing is made, admissibility turns on the discretionarybalancing of the probative value and the need for the evidence against the potential for delay,surprise, and prejudice (see People v Hudy, 73 NY2d at 55; People v Alvino, 71NY2d at 242).
Here, the Supreme Court granted the People's application to admit the subject testimony toestablish the defendant's identity through a unique modus operandi. The identity exception to theMolineux rule "is used in limited circumstances, when the defendant employs someunique, unusual, or distinctive modus operandi in an uncharged crime that is relevant toproving his identity as the perpetrator of the crime charged" (People v Mateo, 93 NY2d327, 332 [1999]). " 'Where identity of the defendant has not been conclusively established byother evidence and there is clear and convincing proof that the modus operandi is sounique as to make the evidence highly probative, the Molineux rule may be invoked' "(People v Toland, 284 AD2d 798, 803-804 [2001], quoting People v Nuness, 192AD2d 960, 961 [1993]).
"Whether prior crime evidence is actually being offered to prove propensity alone is often asubtle matter in which semantics sometimes plays an important part" (People v Hudy, 73NY2d at 55). Contrary to the People's contention, the mere fact that the defendant maintained hisinnocence of the crimes charged did not make identity an issue in this case, where thecomplainant was the defendant's wife and had testified that the incident occurred over a 12-hourperiod (cf. People v Beam, 57 NY2d 241, 251 [1982]; People v Condon, 26NY2d 139, 142 [1970]). The only purpose for which the testimony conceivably was admittedwas to enhance the credibility of the complainant, which is not one of the recognized exceptionsto the Molineux rule (see People v Harris, 150 AD2d 723, 725 [1989]).Moreover, the prejudice to the defendant resulting from the admission of the prior crimetestimony was exacerbated by the prosecutor's summation remarks highlighting the similaritiesbetween the two alleged assaults (see People v Hudy, 73 NY2d at 56; People vHarris, 150 AD2d at 726).
Accordingly, under the particular circumstances of this case, the defendant was deprived ofhis right to a fair trial as a result of the Supreme Court's improper admission of evidence of aprior crime, and a new trial is necessary.
In light of our determination, the defendant's remaining arguments, including those raised hissupplemental pro se brief, have been rendered academic Fisher, J.P., Angiolillo, Leventhal andLott, JJ., concur.