dissents, and votes to reverse the judgment appealed from and to order a new trial, with the following memorandum in which Goldstein, J., concurs. I respectfully dissent and vote to reverse the judgment appealed from and to order a new trial on the ground that the defendant was improperly prevented from presenting his defense to the jury.
The defendant was charged with criminal sale of a controlled substance in the third degree. At trial, his defense was that he was a crack cocaine addict, and that his custom was to fill the vials of crack cocaine that he had consumed with baking soda for resale on the street. It was by selling such baking soda disguised as crack cocaine that he acquired money to buy more crack cocaine for himself. The defendant contended that the undercover officer in the instant case had purchased three such vials, containing nothing more than a minuscule residue of cocaine from the crack cocaine that he had smoked earlier. In consequence, according to the defendant, he did not knowingly sell a controlled substance to the undercover officer. Rather, his intention had been to sell the officer "beat”, or fake, cocaine.
Although the prosecution was allowed to present evidence that the defendant probably watered down the cocaine that he sold by mixing it with baking soda, the defendant was not permitted to testify that on three prior occasions he had been arrested for the sale of drugs, but had subsequently been *605released when the subject vials were found not to contain any controlled substance (see, e.g., People v Rodriguez, 85 NY2d 586). This "habit evidence” should have been admitted to prove the absence of mistake or accident, as well as to support the defendant’s claim that the instant offense was part of his common scheme or plan to sell baking soda in lieu of cocaine (see, e.g., People v Molineux, 168 NY 264, 298; see also, People v Ingram, 71 NY2d 474; People v Mascoli, 166 AD2d 612; Prince, Richardson on Evidence §§ 4-511, 4-512, 4-601 [Farrell 11th ed]). The prior arrests were additionally relevant to the intent element of the crime charged (People v Levan, 295 NY 26, 33; People v Molineux, supra; People v Ellison, 128 AD2d 720, 721; People v Singleton, 21 AD2d 907; see also, People v Satiro, 72 NY2d 821; People v Alvino, 71 NY2d 233; People v Watson, 177 AD2d 676; Prince, Richardson on Evidence § 4-510 [Farrell 11th ed]).
In addition, the court did not permit defense counsel to cross-examine an undercover officer and a police chemist, both of whom had been qualified as experts, as to the quantity of cocaine typically found in a $5 street vial of the sort sold by the defendant. The jurors were therefore denied the information they needed to assess whether the quantity of cocáine sold by the defendant comported with a criminal intention to sell a controlled substance, or was instead more consistent with the theory of the defense that the defendant’s sole intention had been to sell baking soda or fake cocaine.
I disagree with the majority’s view that the defense was somehow undercut by the testimony of the prosecution’s chemist. The chemist merely clarified that he did not test for "crack”. As Undercover Officer No. 53 had earlier testified, "crack” is nothing more than a combination of cocaine and baking soda "cook[ed] * * * up” together for sale on the street (see, e.g., Hatsukami and Fischman, Crack Cocaine and Cocaine Hydrochloride, Journal of Am Med Assn. Nov. 20, 1996, vol 276, No. 19, at 1580, arguing that because the two compounds are chemically identical, the disparity in Federal sentencing guidelines with respect to their possession is unfair). Rather, the chemist, a scientist, tested the preparation in the defendant’s vials for cocaine, which is the only narcotic (and illegal) component of crack cocaine. Significantly, the chemist testified that he did not test the white powder for noncontrolled substances such as baking soda, and he admitted that the powder he examined could have contained significant quantities of baking soda for all he knew. Accordingly, the chemist’s discovery that "cocaine hydrochloride salt” was present in the *606defendant’s vials was not at all inconsistent with the defendant’s account that the containers had formerly been filled with a crack preparation of cocaine, of which he had smoked all but a trace residue.
Because the defendant was systematically thwarted in his efforts to establish that the vials recovered from him had contained only a trace residue of controlled substance, his ability to develop his defense was seriously curtailed (see, e.g., People v Hudy, 73 NY2d 40). Moreover, the error was compounded by the prosecutor’s arguing on summation that the minute quantity of cocaine present in the vials the defendant had sold "means nothing” with respect to his intention to sell a controlled substance, and that if any cocaine at all was present, the defendant’s criminal intention could be deduced. The prosecutor urged the jury to "listen very carefully to the Judge’s instructions” on this issue. Thereafter, the court charged that "the weight or purity of the narcotic drug sold” was irrelevant to an assessment of the defendant’s guilt, because "[t]he law [Penal Law § 220.39 (1)] speaks of the knowing and unlawful sale of any amount of a substance, if that substance in any degree contains a narcotic drug” (emphasis supplied). Defense counsel objected to this charge, which indeed effectively directed the jury to reject the defendant’s defense and to return a verdict of guilty.
Contrary to the majority’s assertion, this entire cluster of issues was adequately preserved for appellate review. Throughout the trial, the defendant never desisted from his efforts to introduce evidence establishing that any drugs found in the vials he had sold to the undercover officer were no more than a trace residue accidentally left behind from the crack cocaine that he had smoked earlier. That the amount of cocaine recovered was too small to evidence an intent to sell a controlled substance was at all times the crux of the defense, and this fact was quite clear to the trial court, whose rulings and instructions "expressly decided the question raised on appeal” (CPL 470.05 [2]). Finally, at the close of the People’s case, counsel moved to dismiss the indictment for the prosecution’s failure to prove that the defendant had intentionally sold cocaine to an undercover officer.