Opinion
February 19, 1991
Appeal from the County Court, Nassau County (Orenstein, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the hearing court properly denied that branch of his omnibus motion which was to suppress the black pouch containing cocaine which was discarded by his codefendant. The defendant failed to establish that he had standing to challenge the seizure of the pouch and its contents, since he freely relinquished any expectation of privacy in the pouch by giving it to his codefendant before police approached the pair (see, People v Ponder, 54 N.Y.2d 160, 165). Moreover, once the police discovered that the pouch contained narcotics, probable cause clearly existed for the defendant's arrest (see, People v White, 117 A.D.2d 127, 131; People v Finlayson, 76 A.D.2d 670, cert denied 450 U.S. 931).
In addition, viewing the evidence in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to support the defendant's conviction of criminal sale of a controlled substance. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15).
The defendant additionally contends that he was deprived of a fair trial because the court permitted the arresting officer to testify that he had observed the defendant commit an unrelated drug sale three weeks prior to his arrest on the instant charges. Although the trial court admitted this evidence on the limited issue of the defendant's intent to sell, such intent to sell was clearly inferable from his commission of the charged sale in plain view of the arresting officer (see, Penal Law § 220.00; People v McDonald, 150 A.D.2d 805; cf., People v Harris, 146 A.D.2d 801). Since evidence of the prior sale was thus unnecessary to prove the defendant's intent, the prejudicial value of this evidence outweighed its probative value, and the court erred in admitting it (see, People v Hernandez, 71 N.Y.2d 233, 242; People v Molineux, 168 N.Y. 264). However, in view of the overwhelming evidence of the defendant's guilt, the limited extent of the improper testimony, and the court's extensive instructions to the jury concerning the limited purpose of the uncharged crime evidence, we find that this error was harmless beyond a reasonable doubt (see, People v Crimmins, 36 N.Y.2d 230; People v Carr, 157 A.D.2d 794; cf., People v McArthur, 170 A.D.2d 540).
We find that the sentence imposed was neither harsh nor excessive (see, People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Brown, J.P., Eiber, Rosenblatt and Ritter, JJ., concur.