People v. Agina

• Citation: 942 N.Y.S.2d 411,18 N.Y.3d 600,2012 N.Y. Slip Op. 01143,965 N.E.2d 913
• Parties: The PEOPLE of the State of New York, Appellant, v. Alaa AGINA, Respondent.
• Decision Date: 16 February 2012
• Court: New York Court of Appeals

18 N.Y.3d 600
2012 N.Y. Slip Op. 01143
942 N.Y.S.2d 411
965 N.E.2d 913

The PEOPLE of the State of New York, Appellant,
v.
Alaa AGINA, Respondent.

Court of Appeals of New York.

Feb. 16, 2012.

[942 N.Y.S.2d 412]

Richard A. Brown, District Attorney, Kew Gardens (Karen Wigle Weiss and John M. Castellano of counsel), for appellant.

Appellate Advocates, New York City (Lisa Napoli and Lynn W.L. Fahey of counsel), for respondent.

[18 N.Y.3d 601] OPINION OF THE COURT SMITH, J.

[965 N.E.2d 914] Under the so-called “identity” or “modus operandi” exception to the Molineux rule, evidence of an uncharged crime that has distinctive characteristics in common with the crime for [18 N.Y.3d 602] which the defendant is on trial may be admissible unless the defendant's identity as the person who committed the act in question is conclusively established by other evidence. In this case, defendant admitted that he was present at the time when the victim said the acts occurred, and did not accuse anyone else of committing them, but denied that he did what he was accused of doing. We hold that on these facts his identity was not so conclusively established as to render evidence of a prior crime inadmissible.

I

The complainant, defendant's wife, testified to a brutal attack that began on the late afternoon of March 28, 2004 and continued until the following morning. According to her testimony, defendant accused her of cheating on him, tore off her clothes, jumped on her, tied a purse strap around her neck and swung her around; then he tied a rope around her neck, wrists and ankles, taped her mouth, put a bag over her head several times for increasingly long periods while talking to her about how long it would take a person to suffocate, punched her, head butted her, stomped on her, made a small cut near her eye with a knife, forced her to take pills and wash them down with rubbing alcohol, and burned her breast with a lighter. He finally released her, and the couple remained together for most (though not all) of the time during the next four days. On April 2, while defendant and the complainant were shopping, the complainant signaled to another shopper and asked her to call the police.

Pictures taken of the complainant on April 2 were admitted into evidence: they show significant injuries on her neck, arms, hip and breast. A nurse who examined the complainant on April 2 testified that the mark on her breast came from a burn.

At a Molineux hearing held before trial, the People asked to present to the jury the testimony of Lisa H., defendant's ex-wife, about an incident 15 months before the one at issue in this case. The People's application was granted over defendant's objection, and Lisa testified at trial that defendant accused her of cheating on him, threatened her with a knife, grabbed her, choked her, tied her wrists and ankles, told her she was going to die and inserted a lighter (evidently unlit) into her vagina.

Defendant was convicted of attempted first-degree assault, second-degree assault and unlawful imprisonment. The Appellate Division reversed the judgment of conviction, concluding [18 N.Y.3d 603] that Lisa's testimony should not have been admitted. The Appellate Division believed that defendant's identity was not in issue at trial, and that therefore Lisa's testimony served no purpose except “to enhance the credibility of the complainant” ( People v. Agina, 74 A.D.3d 831, 834, 903 N.Y.S.2d 86 [2d Dept.2010] ). A Judge of this Court granted leave to appeal, and we now reverse.

II

Under the familiar rule of [965 N.E.2d 915]

[942 N.Y.S.2d 413]

People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901), evidence of uncharged crimes is inadmissible where its only relevance is to show defendant's bad character or criminal propensity ( see People v. Arafet, 13 N.Y.3d 460, 464–465, 892 N.Y.S.2d 812, 920 N.E.2d 919 [2009]; People v. Alvino, 71 N.Y.2d 233, 241, 525 N.Y.S.2d 7, 519 N.E.2d 808 [1987] ). Also familiar is the identity or modus operandi exception: evidence of a similar crime may be admissible to identify the defendant where “the similarities [are] unusual enough to compel the inference that the defendant committed both” ( People v. Beam, 57 N.Y.2d 241, 251, 455 N.Y.S.2d 575, 441 N.E.2d 1093 [1982] ). Where this test is met, evidence of the uncharged crime may be admitted “unless the defendant's identity is conclusively established” by other evidence ( People v. Condon, 26 N.Y.2d 139, 142, 309 N.Y.S.2d 152, 257 N.E.2d 615 [1970] ).

We assume for present purposes that defendant's assault on his ex-wife, Lisa, was similar enough to the alleged assault on his current wife, the complainant, to trigger the identity exception. That is an issue the Appellate Division did not reach, and on which we express no opinion. The issue before us is whether defendant's identity was so conclusively established as to prevent the exception from being invoked. We hold that it was not.

The evidence that we have summarized, the substance of which was known to the trial judge when he decided the Molineux application, was not conclusive in establishing defendant's identity as the person who attacked his wife. While the existence of the complainant's injuries was proved by photographs, nothing in the People's case except the complainant's testimony (apart from the evidence of the uncharged crime) pointed to defendant as the person who injured her. Since the jury might doubt the complainant's word, this evidence was not conclusive. It is true, as the dissent says, that there was no possibility of mistaken identity (dissenting op. at 606, 942 N.Y.S.2d at 415, 965 N.E.2d at 917). But the jury could have believed that the complainant's identification was intentionally false, as defense counsel's opening suggested, in language quoted by the dissent: “she is not telling the truth” (dissenting op. at 607, 942 N.Y.S.2d at 416, 965 N.E.2d at 918).

[18 N.Y.3d 604] At the time of the Molineux hearing the trial judge also knew defendant's version of the facts. Defendant had testified at a previous hearing on whether he had violated the conditions of his probation. The People do not claim, and we do not assert, as the dissent suggests, that his testimony “opened the door” to otherwise...