Because the “Identity” of the Perpetrator Was Not an Issue, Allowing Evidence of Prior Crimes to Prove Identity Was Reversible Error.

In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 Second Dept. 2-13-13