| People v Allen |
| 2011 NY Slip Op 05512 [85 AD3d 1042] |
| June 21, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Allen, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley, Douglas Noll, andCourtney Weinberger of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.),rendered June 1, 2010, convicting him of criminal possession of a weapon in the second degreeand criminal possession of a weapon in the third degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and a new trial is ordered.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt beyond a reasonable doubt. Moreover, upon our independent review pursuant toCPL 470.15 (5), we are satisfied that the verdict of guilt was not against the weight of theevidence (see People v Romero, 7NY3d 633 [2006]).
However, as the defendant correctly contends, the Supreme Court erred in permitting theintroduction of evidence of a prior uncharged hand-to-hand drug transaction. This evidence wasnot admissible under the modus operandi or absence of mistake exceptions to theMolineux rule (see People v Molineux, 168 NY 264 [1901]). Additionally, theSupreme Court's limiting instruction was insufficient to cure the prejudice caused by theerroneous admission of this evidence (see People v Barbato, 82 AD3d 1112, 1113 [2011]; People v Wilkinson, 71 AD3d249, 257 [2010]).
We also agree with the defendant's contention, although unpreserved for appellate review,that he was deprived of a fair trial by the jury's receipt, in the jury room, of items that were notadmitted into evidence, including a marijuana bud and a bullet. These items were discovered byjurors examining the pocket of the defendant's jacket, which had been admitted into evidence.While the trial court has the discretion to allow the jurors, upon retiring to deliberate, to take withthem "[a]ny exhibits received in evidence at the trial" (CPL 310.20 [1]), "no provision authorizessubmission of unadmitted exhibits" (People v Bouton, 50 NY2d 130, 137 [1980]). "Sincean unadmitted exhibit has not undergone the test of cross-examination, its consideration by thejury directly infringes on the defendant's right of confrontation" (id. at 137).[*2]
Under the circumstances of this case, we find that theseerrors were not harmless (see People v Crimmins, 36 NY2d 230 [1975]). Accordingly,the judgment of conviction must be reversed and a new trial ordered. Rivera, J.P., Eng, Romanand Miller, JJ., concur.