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A man accused of stealing a $30,000 diamond ring is entitled to a new trial because a judge allowed testimony from a woman who said that he stole rings from her as well under similar circumstances, a divided state appeals panel has ruled.

Appellate Division, First Department, Justice Rolando Acosta (See Profile) wrote for the 3-2 majority in People v. DeGerolamo, 6388/09, and was joined by Justices David Friedman (See Profile) and Leland DeGrasse (See Profile). They ruled that the defendant, Gerald DeGerolamo, was entitled to a new trial because the evidence of his alleged prior theft was inadmissible under the Court of Appeals’ landmark 1901 decision, People v. Molineux, 168 NY 264.

Justice Richard Andrias (See Profile) dissented, joined by Justice Helen Freedman (See Profile).

In the summer of 2009, DeGerolamo responded to a post on the classified ad site Craigslist from David Cushman, who was selling a $30,000 diamond ring for an engagement that had been called off. DeGerolamo arranged to meet Cushman in a parking lot, saying he and his girlfriend wanted to look at the ring; no girlfriend showed up, and DeGerolamo left without the ring. DeGerolamo himself failed to show up for a second planned meeting. Finally, months later, in December, the two men met again.

That time, DeGerolamo allegedly cornered Cushman in an apartment building vestibule, sprayed mace in his face, grabbed the ring and tried to get away. Cushman, however, was able to catch and subdue DeGerolamo until police arrived and arrested him. He was charged with second-degree grand larceny.

DeGerolamo claimed he was defending himself from Cushman, who he said attacked him with the mace.

DeGerolamo was charged with a similar crime against a different victim, Mary Nguyen, when she was selling two rings from her ex-husband, which she valued at $65,000. DeGerolamo, identifying himself as “Joey,” allegedly told Nguyen that he was a jewelry dealer and wanted to introduce her to someone who would buy the rings. In the fall of 2009, he met Nguyen twice but failed to buy the rings. At their third meeting, in a restaurant, DeGerolamo switched different rings for Nguyen’s rings, took the rings with him when he excused himself to go to the bathroom, and never came back. Nguyen then called the police.

Acting Supreme Court Justice Thomas Farber (See Profile) presided over both cases.

DeGerolamo was convicted of stealing Cushman’s ring and sentenced to five and a half years in prison in February 2011, following a jury trial.

He pleaded guilty to stealing Nguyen’s rings and was sentenced to an additional one to three years, to run consecutively, in November 2011.

At DeGerolamo’s trial for stealing Cushman’s ring, Farber allowed Nguyen to testify about how he also stole her rings.

In Molineux, the Court of Appeals held that prosecutors generally cannot present testimony at a criminal trial about a separate crime not charged in the indictment. It created several exceptions, including when the testimony about the uncharged crime establishes intent, and when the two crimes are part of a common scheme.

DeGerolamo appealed his conviction, arguing that Nguyen’s testimony should not have been admitted under Molineux.

Acosta agreed. Despite the similarity of the two crimes, he ruled, DeGerolamo’s intent was clearly established if the jury believed Cushman’s testimony, with no need to introduce Nguyen’s.

“Here, proof of defendant’s actions is sufficient to demonstrate that he acted with the requisite intent,” Acosta wrote. “Spraying someone in the face with mace, grabbing the person’s ring and running can only indicate an intent to steal the ring. If the jury believed Cushman’s testimony, then it would have to infer that defendant intended to steal the ring from him.”

Acosta also ruled that the testimony was not admissible under the common plan exception. In 1974, he said, the Court of Appeals held in People v. Fiore, 34 NY2d 81, 85 that for evidence about an uncharged crime to be admitted, it must be part of “single inseparable plan” with the charged crime. Merely showing that a defendant has a modus operandi is not enough, he said.

“In this case, the similarities between the presently charged robbery of Cushman and the robbery testified to by Nguyen—that both incidents involved expensive jewelry listed on Craigslist and that phone conversations were had—evidence only ‘a repetitive pattern,’” he wrote, quoting Fiore. “The alleged robbery of Nyugen was not committed to effect the robbery of Cushman.”

Furthermore, Acosta said that DeGerolamo was harmed by allowing Nguyen’s testimony. The testimony formed “a significant portion” of the People’s case, he said, and the prosecuting attorney emphasized it in his opening and closing statements.

Andrias, in his dissent, said that DeGerolamo’s was a “classic Molineux case” and that the evidence was admissible.

Andrias conceded that in a more straightforward robbery, evidence of a similar past crime would not be admitted.

“However, this is not your garden variety robbery where someone sticks a gun in the victim’s face, and the jury either believes the complainant’s version of the facts or does not,” Andrias wrote. “Defendant’s larcenous scheme took place over many weeks and whether defendant was a legitimate buyer who intended to flip the diamond ring and earn a quick profit, whether he planned to steal the ring from Cushman by trickery, and whether he planned to take the ring by force are all ambiguities in the People’s evidence.”

Nguyen’s testimony, he said, help resolve those ambiguities.

The prosecution is represented by Manhattan Assistant District Attorneys Hope Korenstein and Eleanor Ostrow. A spokesman for the D.A.’s office declined to comment.

DeGerolamo was represented by Molly Ryan and Debra McElligott, student interns in the Criminal Appellate Defender Clinic run by the Office of the Appellate Defender and NYU School of Law. The students, who have since graduated, briefed and argued the case under the supervision of Joseph Nursey, a supervising attorney at the Office of the Appellate Defender.

“We’re very happy with the decision,” Nursey said. “It’s just an application of the standard rule in Molineux on letting in this type of evidence in trial.”