People v. Torres

May 22, 1995
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered March 22, 1993, convicting him ‍​‌‌​​‌‌​​​‌​‌‌​‌​​​​​​​​​​​​‌​‌​‌‌‌​​​​​​‌​​‌‌‌​‌‌​​​​​‌‌‌​​​‌‌​​​​‌‌‌​​​​​‌‌‌​‌‌​​‌‌‌​​‌‌​​‌‌‌​‍of criminal sale of a controlled substance in the third degree (three counts) and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Evidence of the defendant’s prior arrest for ‍​‌‌​​‌‌​​​‌​‌‌​‌​​​​​​​​​​​​‌​‌​‌‌‌​​​​​​‌​​‌‌‌​‌‌​​​​​‌‌‌​​​‌‌​​​​‌‌‌​​​​​‌‌‌​‌‌​​‌‌‌​​‌‌​​‌‌‌​‍drug-related offenses was improperly admitted by the trial court under the identity and common-scheme-or-plan exceptions to the rule enunciated in People v Molineux (168 NY 264). The defendant’s identity was conclusively established at trial, and the method of committing the crime was not sufficiently ‍​‌‌​​‌‌​​​‌​‌‌​‌​​​​​​​​​​​​‌​‌​‌‌‌​​​​​​‌​​‌‌‌​‌‌​​​​​‌‌‌​​​‌‌​​​​‌‌‌​​​​​‌‌‌​‌‌​​‌‌‌​​‌‌​​‌‌‌​‍unique to qualify as proof of a common scheme or plan (see, People v Ortiz, 156 AD2d 77; see generally, People v Allweiss, 48 NY2d 40). Accordingly, the prejudicial effect of the evidence of the defendant’s prior arrest outweighed its probative value. However, under the facts ‍​‌‌​​‌‌​​​‌​‌‌​‌​​​​​​​​​​​​‌​‌​‌‌‌​​​​​​‌​​‌‌‌​‌‌​​​​​‌‌‌​​​‌‌​​​​‌‌‌​​​​​‌‌‌​‌‌​​‌‌‌​​‌‌​​‌‌‌​‍of this case, we find that the error is harmless (see, People v Crimmins, 36 NY2d 230).

Contrary to the defendant’s contention, the record demonstrates that the defendant was not deprived of his right to effectively cross-examine a police officer who testified at trial.

We have ‍​‌‌​​‌‌​​​‌​‌‌​‌​​​​​​​​​​​​‌​‌​‌‌‌​​​​​​‌​​‌‌‌​‌‌​​​​​‌‌‌​​​‌‌​​​​‌‌‌​​​​​‌‌‌​‌‌​​‌‌‌​​‌‌​​‌‌‌​‍considered the defendant’s remaining contention and find it to be without merit. Sullivan, J. P., Copertino, Goldstein and Florio, JJ., concur.