The People of the State of New York, Respondent, v. Robert Bethea, Appellant

The People of the State of New York, Respondent, v Robert Bethea, Appellant. [734 NYS2d 437] [MAJORITY] 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 4V2 to 9 years, unanimously affirmed. 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 NY2d 816, 819; People v Jacobs, 278 AD2d 21, 22, lv denied 96 NY2d 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. Concur — Rosenberger, J. P., Tom, Andrias, Ellerin and Wallach, JJ.