Opinion
5676
December 20, 2001.
Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered August 3, 2000, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4½ to 9 years, unanimously affirmed.
SETH DAVIS, for respondent.
ROBERT S. DEAN, for defendant-appellant.
Before: Rosenberger, J.P., Tom, Andrias, Ellerin, Wallach, JJ.
The court properly refused to permit defendant to testify that he had told the police that the drugs contained in the subject glassine bags were imitations. Defendant argues that these statements were admissible, not for their truth, but as circumstantial evidence of his lack of knowledge that the envelopes contained real heroin. However, it is clear that he actually intended to use these statements to establish that he had, in fact, believed that the glassine bags contained fake heroin, and hearsay testimony may not be employed to establish a person's past belief (People v. Reynoso, 73 N.Y.2d 816, 819; People v. Jacobs, 278 A.D.2d 21, 22, lv denied 96 N.Y.2d 759). In any event, despite the court's ruling, defendant actually testified as to the very matter that the court had precluded, and this testimony was not stricken. Accordingly, there was no prejudice to defendant's right to present a defense.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.