Opinion
June 29, 1992
Appeal from the Supreme Court, Kings County (Starkey, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
On their direct case, the People were permitted to introduce evidence concerning the defendant's prior drug sale conviction. The court admitted this evidence on the theory that it was relevant to the defendant's intent to sell. However, since the defendant's intent was clearly inferable from his commission of the sale in plain view of the undercover officer, the evidence of the defendant's prior conviction was unnecessary to prove his intent (see, People v. Stevenson, 179 A.D.2d 832). Moreover, this defendant, unlike his codefendant, did not raise an agency defense (cf., People v. Alers, 182 A.D.2d 822). Thus, the prejudicial effects of this evidence outweighed its probative value, and the court erred in admitting it (see, People v Hernandez, 71 N.Y.2d 233; People v. Stevenson, supra). Under the circumstances, this error was not harmless (see, People v Crimmins, 36 N.Y.2d 230; People v. Stevenson, supra). Accordingly, the defendant is entitled to a new trial.
In light of this determination, we need not address the defendant's remaining contentions. Rosenblatt, J.P., Miller, Ritter and Pizzuto, JJ., concur.