Opinion
June 16, 2000.
Appeal from Judgment of Seneca County Court, Bender, J. — Sodomy, 2nd Degree.
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER AND LAWTON, JJ.
Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of sodomy in the second degree (Penal Law § 130.45), sexual abuse in the second degree (Penal Law § 130.60) and two counts of endangering the welfare of a child (Penal Law § 260.10). We conclude that defendant was denied a fair trial by the admission of testimony that he had an ongoing sexual relationship with the 11-year-old complainant ( see, People v. Lewis, 69 N.Y.2d 321) and by the prosecutor's reference to that testimony on summation ( see, People v. Harris, 150 A.D.2d 723, 726). We reject the People's contention that the evidence was probative of a count of endangering the welfare of a child; that count did not charge continuing offenses over a period of time ( cf., People v. Keindl, 68 N.Y.2d 410, 421, rearg denied 69 N.Y.2d 823). The admission of evidence offered to demonstrate defendant's propensities and to enhance the credibility of the complainant was improper ( see, People v. Lewis, supra, at 327-328; People v. Harris, supra, at 725-726). We also reject the People's contention that the proof of guilt is overwhelming and thus that the error is harmless ( cf., People v. Myers, 185 A.D.2d 695), and we conclude that the references to the sexual relationship were" likely to divert the jury's attention from the specific offenses charged in the indictment" ( People v. Mediak, 217 A.D.2d 961, 962, lv denied 87 N.Y.2d 848). We have reviewed the remaining contentions of defendant and conclude that they are without merit.