Opinion
February 16, 1978
Judgment, Supreme Court, New York County, rendered March 29, 1974, convicting the defendant, after a jury trial, of two counts of criminal sale of a dangerous drug in the third degree, and four counts of criminal possession of a dangerous drug in the fourth degree, unanimously reversed, on the law, and the matter remanded for a new trial. The admission into evidence of police file "mug" shots of defendant, which predated the instant offense for which he was charged, could have alerted the jury to the fact that the defendant had a criminal history. (People v Caserta, 19 N.Y.2d 18, 21.) While the prison numerals across defendant's chest were taped over in the photographs, this could have had the effect of emphasizing their nature rather than ameliorating the problem. The photographs could have been probative in connection with the contention with respect to the change of appearance of the defendant, but they were not properly redacted. Were we not reversing, we would, on the People's concession, modify and dismiss with respect to three of the possession counts as inclusory concurrent counts of the two charges of criminal sale. (People v Droz, 46 A.D.2d 751; People v Holman, 51 A.D.2d 708; People v Rivers, 51 A.D.2d 531.) We have examined the other points raised by the defendant and find them without merit.
Concur — Kupferman, J.P., Birns, Silverman, Lane and Markewich, JJ.