In People v Cass (#28 decided 2/16/12) the defendant's claim of extreme emotional disturbance was undercut by the fact that he'd allegedly committed a nearly identical murder 14 months earlier. In both cases he claimed that he was surprised by men making sexual advances to him and he "just lost it". Though in the instant case Cass' belt was used to drag the deceased and in the prior case it was used to cause death. The defense countered the DA's request by saying that the prior allegations were not inconsistent with the claimed EED defense, but rather supported it, and in any event were highly prejudicial even if modestly probative.
The Court of Appeals held: "By asserting the defense of extreme emotional disturbance, defendant necessarily put his state of mind at the time of the Dombrova killing in issue. We have held that where a defendant puts an affirmative fact--such as a claim regarding his/her state of mind--in issue, evidence of other uncharged crimes or prior bad acts may be admitted to rebut such fact" ... "This highly probative evidence is directly relevant to defendant's extreme emotional disturbance defense in that it has a logical and natural tendency to disprove his specific claim that he was acting under an extreme emotional disturbance at the time of the Dombrova homicide (See Santarelli, 49 NY2d at 248). The evidence arguably shows that defendant had a premeditated intent to target gay men for violence, thereby tending to rebut the loss of control he claimed as part of his extreme emotional disturbance defense. Thus, the evidence tends to establish that the subjective element of the defense has not been made out." Thus, even if the Molineux evidence is not wholly inconsistent with the defense, if it has sufficient value as a counter to a proffered defense, it can be admissible. The Court of Appeals also stressed repeatedly the DA's theory, implying perhaps that a prosecution can be tailored to fit particularly nasty Molineux evidence.
The Court also upheld the use of Molineux to prove identity where the complainant was the defendant's wife and the defendant admitted being present at the scene of the crime when it took place (People v Agina Case #12). The complainant alleged that the defendant accused her of cheating on him, and that he proceeded to bind and torture her. He released her and the two then had four reasonably good days together before she alerted authorities. On the theory that since the defendant denied committing the crimes in question, he had placed identity in issue, the trial court allowed the defendant's ex-wife to testify that, 15 months before the allegations at trial, he had accused her of cheating on him, bound her and tortured her. The Appellate Division reversed, saying "identity my ass" (I haven't read the decision). The Court of Appeals reinstated the conviction. "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." "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 2-3). 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 4)."
Judges Ciparek and Jones dissented for the obvious reason that the complainant's ability to identify her husband was not an actual issue at trial.