concurs in part and dissents in part in a memorandum. Harvey, J. (concurring in part and dissenting in part). I concur with the majority’s conclusion that the manslaughter conviction should be reversed but otherwise I respectfully dissent. In my view, there was insufficient evidence *771to prove beyond a reasonable doubt that this defendant intended to commit the crime of robbery. The jury, obviously, came to the conclusion that there was sufficient evidence and the majority of this court agrees. There is no point in discussing that issue further.
What does trouble me is whether the conduct of the trial prejudiced defendant to the extent that an unfair application of the law was made by the jury. The admission into evidence of a series of photographs beginning with an irrelevant snapshot of decedent taken while he was alive and in good health (see, People v Winchell, 98 AD2d 838, 840, affd 64 NY2d 826), followed by gory photographs of the body after the stabbing and during the autopsy, was clearly an abuse of County Court’s discretion. The sole purpose for the admission of these photographs could only have been to influence the jury and prejudice defendant (see, People v Pobliner, 32 NY2d 356, 370, cert denied 416 US 905; People v Mercado, 120 AD2d 619, 620).
The prosecution’s argument in support of the admission of the photographs is not persuasive. No issue was raised at the trial as to the fact that Edward Glenn died as a result of a knife wound to the heart inflicted by defendant’s brother, who has pleaded guilty to that crime. The stab wound was described with particularity by the prosecution’s expert witness and defendant did not contest any aspect of that testimony. Consequently, the exact nature and extent of the victim’s injuries, as depicted in the autopsy photographs and the photographs taken at the crime scene, was not relevant or material to the elements of the crimes charged or necessary to disprove any defense (cf., People v Cuffee, 112 AD2d 545, lv denied 66 NY2d 762; People v Millson, 93 AD2d 899; People v Arca, 72 AD2d 205; see, People v Medina, 120 AD2d 749, lv denied 68 NY2d 915).
The majority express the view that the photographs depicting, for example, a ruler protruding from Glenn’s torso showing the depth of the stab wound was necessary to show whether defendant acted with the intent to commit serious physical injury. However, such evidence could only serve to prove the intent of defendant’s brother Anthony Stevens to kill Glenn, an intent that could not be imputed to defendant (see, e.g., People v La Belle, 18 NY2d 405, 413; People v Morales, 130 AD2d 366, 367).
County Court had an opportunity to permit the laying of the groundwork for introduction of the photographs and delay a decision as to admissibility until after all proof had been *772completed. At that time it was clearly evident that the admission of the photographs was completely unnecessary and the jury would not have viewed them.
It is my firm belief that if there was sufficient circumstantial proof to establish defendant’s intent, that proof was so thin that the photographs could have played a most important role in the jury’s determination. The photographs, when combined with the hearsay testimony describing an alleged plan to rob the victims by defendant and Anthony Stevens given by a fellow inmate of Stevens, bolstered the very fragmentary and contradictory testimony of the chief prosecution witness, David Baglione. Although County Court charged that the inmate’s testimony was only relevant to the credibility of the testimony given by Stevens, it would be naive to conclude that it was not accepted by the jury as proof of an intent to rob on the part of defendant. This would be particularly likely assuming that a juror’s mind was already inflamed by the gory photographs.
Considering the less than overwhelming proof that defendant intended to commit the predicate felony of robbery, in my view the above-mentioned errors as well as others do not lend themselves to a harmless error analysis (see, People v Crimmins, 36 NY2d 230, 241). Thus, assuming sufficient evidence was adduced to support the felony murder conviction, a new trial should still be ordered.