People v. Rivera

Balio and Lawton, JJ.. (dissenting).

We cannot agree with the majority’s conclusion that the admission of evidence of defendant’s uncharged crime of pinching another’s woman’s buttocks earlier that day, though error, was harmless. Complainant’s testimony was the principal evidence that the intercourse was by forcible compulsion, rather than by consent as asserted by defendant. Further, complainant suffered no physical trauma or injuries and her clothing was undamaged. Additionally, it is admitted that the alleged knife was never displayed or recovered. As the conviction rests principally on assessing the credibility of defendant and complain*958ant, the evidence is not overwhelming and the error cannot be deemed harmless. (People v Lewis, 69 NY2d 321; People v McKinney, 24 NY2d 180, 184-186; cf., People v Johnson, 57 NY2d 969, 970). Additionally, as the introduction of this evidence would seriously prejudice defendant in the eyes of the jury by showing his criminal sexual propensities, we cannot conclude that there was no significant probability that the jury would have acquitted defendant but for this error (People v Crimmins, 36 NY2d 230, 242). (Appeal from judgment of Supreme Court, Monroe County, Mark, J.—rape, first degree.) Present—Dillon, P. J., Callahan, Denman, Balio and Lawton, JJ.