People v. Monahan , 114 A.D.2d 380 ( 1985 )

Lazer, J. P.,

concurs in the result, with the following memorandum: While I concur in the result, I find the case and its portents troublesome. On their direct case, the People were permitted to offer evidence of defendant’s convictions on other drug-related offenses. While such propensity evidence is ordinarily inadmissible, it was allowed here because in a bench conference following completion of the People’ case, but before they had formally rested, the defendant disclosed the defense of agency would be argued on summation, with no defense witnesses offered. The court then permitted the People to submit further evidence consisting of certificates of defendant’s convictions for other drug-related crimes. While I cannot view the court’s action as erroneous or an abuse of discretion, we seem to have established a rule that permits the People to provide evidence of such convictions once they become aware that agency will be a defense, irrespective of whether the defense offers witnesses. While I assume that our current holding creates no mandate for defense counsel to give advance notice that an agency defense will be interposed, I suspect it might be more difficult for the People to get the trial reopened to offer evidence of drug-related convictions once the defense has completed its summation.