PEOPLE v. CASTRO (1999)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered May 8, 1998, convicting him of sexual abuse in the first degree, sexual abuse in the third degree, and harassment in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reversing the conviction of sexual abuse in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

 The defendant correctly contends that the court erred in admitting into evidence a sexually explicit videotape recovered from his person upon his arrest.   The admission into evidence of the videotape was not authorized by either the motive, intent, identity, absence of mistake, or accident exceptions to the Molineux rule (see, People v. Molineux, 168 N.Y. 264, 61 N.E. 286;  see also, People v. Vargas, 88 N.Y.2d 856, 858, 644 N.Y.S.2d 484, 666 N.E.2d 1357;  People v. Seaman, 239 A.D.2d 681, 682, 657 N.Y.S.2d 242;   People v. Mercado, 188 A.D.2d 941, 943, 592 N.Y.S.2d 75;  People v. Bagarozy, 132 A.D.2d 225, 234-237, 522 N.Y.S.2d 848).   Nonetheless, any error in admitting the videotape was harmless (see, People v. San Roc Rests., 117 A.D.2d 760, 498 N.Y.S.2d 481).

 As the People correctly concede, the defendant's conviction of sexual abuse in the third degree must be reversed and that count of the indictment dismissed because that crime is an inclusory concurrent count of sexual abuse in the first degree (see, CPL 300.40[3][b];  Matter of Rafiq W., 257 A.D.2d 419, 682 N.Y.S.2d 353 ).

MEMORANDUM BY THE COURT.