PEOPLE v. HOLLOWAY

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. William K. HOLLOWAY, Defendant-Appellant.

Decided: December 31, 2003

PRESENT:  GREEN, J.P., SCUDDER, GORSKI, LAWTON, AND HAYES, JJ. Kathleen E. Casey, Middleport, for Defendant-Appellant. Joseph V. Cardone, District Attorney, Albion (Katherine Kersch Bogan of Counsel), for Plaintiff-Respondent.

 Defendant appeals from a judgment convicting him following a jury trial of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ) and criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ).   We reject the contention of defendant that County Court erred in permitting the People to introduce proof of an uncharged sale of cocaine that occurred two hours before his arrest.   It is well settled that evidence of uncharged crimes may be relevant to establish intent (see People v. Molineux, 168 N.Y. 264, 293-294, 61 N.E. 286).   Here, an element of criminal possession of a controlled substance in the third degree is intent to sell (§ 220.16[1] ), and the court properly determined that evidence of the uncharged drug sale that occurred just two hours before defendant's arrest was admissible as evidence of defendant's intent to sell the cocaine possessed by defendant at the time of his arrest (see People v. Maddox, 272 A.D.2d 884, 708 N.Y.S.2d 769, lv. denied 95 N.Y.2d 867, 715 N.Y.S.2d 222, 738 N.E.2d 370).   We further conclude that the court's error in admitting such proof without first conducting a hearing is harmless (see People v. Watkins, 229 A.D.2d 957, 645 N.Y.S.2d 383, lv. denied 89 N.Y.2d 931, 654 N.Y.S.2d 734, 677 N.E.2d 306;  People v. Robinson, 202 A.D.2d 1044, 1044-1045, 609 N.Y.S.2d 978, lv. denied 83 N.Y.2d 1006, 616 N.Y.S.2d 488, 640 N.E.2d 156).   Also contrary to defendant's contention, the court properly instructed the jury on the elements of criminal possession of a controlled substance in the fifth degree (see People v. Encarnacion, 190 A.D.2d 607, 607-608, 593 N.Y.S.2d 813, lv. denied 81 N.Y.2d 1072, 601 N.Y.S.2d 592, 619 N.E.2d 670).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: