People v. Agina

• Decision Date: 13 February 2013
• Citation: 103 A.D.3d 739,2013 N.Y. Slip Op. 00929,959 N.Y.S.2d 275
• Parties: The PEOPLE, etc., respondent, v. Alaa AGINA, appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 739
959 N.Y.S.2d 275
2013 N.Y. Slip Op. 00929

The PEOPLE, etc., respondent,
v.
Alaa AGINA, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 13, 2013.

[959 N.Y.S.2d 277]

Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant, and appellant pro se.

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

DANIEL D. ANGIOLILLO, J.P., JOHN M. LEVENTHAL, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

[103 A.D.3d 740]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 in the second degree, and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence. By decision and order dated June 1, 2010, this Court reversed the judgment and ordered a new trial ( see People v. Agina, 74 A.D.3d 831, 903 N.Y.S.2d 86). On February 16, 2012, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court for consideration of the facts and issues raised but not determined on the appeal to this Court ( see People v. Agina, 18 N.Y.3d 600, 942 N.Y.S.2d 411, 965 N.E.2d 913). Justice Miller has been substituted for the late Justice Fisher ( see22 NYCRR 670.1[c] ).

ORDERED that, upon remittitur from the Court of Appeals, the judgment is reversed, on the facts and as a matter of discretion in the interest of justice, 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. After a jury trial, the defendant was convicted of attempted assault in the first degree, assault in the second degree, and unlawful imprisonment in the first degree. In a decision and order dated June 1, 2010, this Court determined that the defendant's challenge to the legal sufficiency of the evidence with respect to his conviction of attempted assault in the first degree was unpreserved for appellate review and, in any event, the evidence was legally sufficient ( see People v. Agina, 74 A.D.3d 831, 832, 903 N.Y.S.2d 86). Moreover, this Court found that the verdict of guilt on that count was not against the weight of the evidence ( see id. at 832, 903 N.Y.S.2d 86). Nevertheless, this Court reversed the conviction and ordered a new trial on the ground that the defendant was deprived of his right to a fair trial as a result of the Supreme Court's improper admission of evidence of a prior crime pursuant to the identity exception to the Molineux rule ( see People v. Molineux, 168 N.Y. 264, 293, 61 N.E. 286), concluding that identity was not an issue in the case ( see People v. Agina, 74 A.D.3d at 833–834, 903 N.Y.S.2d 86). On February 16, 2010, the Court of Appeals reversed the decision and order of this Court, concluding that this Court erred in holding the defendant's identity to

[959 N.Y.S.2d 278]

be “conclusively established” for Molineux purposes, and remitted the matter to this Court to determine whether the identity exception is applicable to these facts, and to resolve any other open issues ( People v. Agina, 18 N.Y.3d 600, 605, 942 N.Y.S.2d 411, 965 N.E.2d 913). We now determine that, although the evidence of the prior crime was probative on the issue[103 A.D.3d 741]of identity, the Supreme Court improvidently exercised its discretion in permitting the People to present this evidence to the jury because the probative value of the evidence was outweighed by its unfair prejudicial effect.

At a Molineux hearing held before trial, the People asked to present to the jury, during their case-in-chief, the testimony of Lisa H., the defendant's former wife, regarding an incident that allegedly occurred 15 months before the one at issue in this case. At the time of the People's application, the Supreme Court was aware that the defendant's position was that while he and the complainant were together during the relevant time period, they had a mere argument; the defendant denied assaulting or threatening the complainant in any way. The People's Molineux application was granted, over defense counsel's objection. As pertinent here, defense counsel argued that “the underlying facts of the bad acts are just so overwhelmingly prejudicial that the defendant would not be able to have a fair trial.” In response, the court stated that it would give the jury a curative instruction as to how the Molineux evidence was to be considered.

At trial, the complainant, the defendant's wife, testified that the defendant repeatedly accused her of cheating on him, removed her clothing, tied a purse string around her neck, and swung her around until she lost consciousness. The complainant further testified that the defendant tied a rope around her neck, wrists, and ankles, taped her mouth, placed a plastic shopping bag over her head several times for...