Almost a year to the date after the Court of Appeals reinstated a guilty verdict in a high-profile spousal assault case, the Appellate Division, Second Department, has again reversed Alaa Agina’s conviction—but this time in a way that may keep the case out of the hands of the higher court.

The Second Department, using its typically non-reviewable interest of justice power, has for the second time granted Agina a new trial on charges that he tortured his wife in a fit of jealous rage.

It said that Supreme Court Justice Ronald Hollie (See Profile) wrongly admitted evidence of a similar attack on Agina’s former wife just 15 months prior to the incidents resulting in his conviction for second-degree assault, attempted first-degree assault and unlawful imprisonment.

That is largely what the court said in 2010, finding that under People v. Molineux, 168 NY 264 (1901), evidence of the uncharged crime was wrongly admitted into evidence. Molineux bars the introduction of evidence of uncharged crimes where the aim is to establish the defendant’s propensity to commit certain offenses.

Last February, the Court of Appeals reversed the Second Department in a split decision and found that Hollie properly allowed evidence of the prior incident under the "identity exception" to Molineux. The identity exception allows the admission of uncharged crimes when there are distinctive similarities between unrelated incidents and the identity of the culprit is inconclusive.

In a 5-2 decision, the Court of Appeals said Agina’s identity was "not so conclusively established as to render the evidence of a prior crime inadmissible." It sent the case back to the Second Department "to decide whether the identity exception is applicable" to the facts of this case.

(See People v. Agina, 18 NY3d 600; " Flurry of Discussion in 2012 on ‘Other Crimes’ Evidence," by Michael Hutter, NYLJ, Feb. 7, 2013.)

On Feb. 13, the Second Department reversed the conviction "on the facts and as a matter of discretion in the interests of justice" and ordered a new trial.

"We now determine that, although evidence of the prior crime was probative on the issue 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," the court said in an unsigned opinion in People v. Agina, 2005-11978.

Agina was accused of terrorizing his wife over a 12-hour period.

She testified that Agina accused her of infidelity, tore off her clothes, tied a purse string around her neck until she lost consciousness, bound her arms and legs and taped her mouth shut, placed a plastic shopping bag over her head several times and for increasingly long periods, punched and head-butted her, forced pills and rubbing alcohol down her throat, poured cooking oil on her body and then burned her breasts.

At trial, Agina’s former wife testified that he had treated her similarly in 2002—accusing her of cheating on him, punching her, threatening to kill her, binding her and inserting a cigarette lighter into her vagina. Hollie admonished the jury that the former wife’s testimony was permitted for the sole purpose of showing that "the behavior or method or procedure used by the defendant against [both women] sufficiently unique to tend to establish a common plan or scheme."

The Second Department said Hollie should not have admitted the evidence in the first place, "because the unfair prejudice to the defendant far exceeded the probative value of the evidence," and compounded his error by an "inaccurate and confusing instruction to the jury." Further, it said the prosecutor’s summation, suggesting that the former wife’s testimony showed Agina had a propensity to commit crimes like the one for which he was on trial, exacerbated the judicial errors.

"Assuming that there was overwhelming evidence of guilt, we cannot conclude that there was no significant probability that the jury would have acquitted the defendant had it not been for the error, as compounded by the prosecutor’s summation remarks," the court said in an opinion by Justices Daniel Angiolillo (See Profile), John Leventhal (See Profile), Plummer Lott (See Profile) and Robert Miller (See Profile).

Assistant Queens District Attorneys John Castellano and Karen Wigle Weiss represented the prosecution. Lisa Napoli of Appellate Advocates appeared for the defendant.

Napoli declined comment. There was no immediate response from the district attorney’s office.