As indicated in the majority opinion, the only issue is whether the evidence in the Rosado incident should have been excluded under the Molineux doctrine. (People v Molineux, 168 NY 264.)
Initially, it should be emphasized that the defendant was acquitted of the attempted murder and assault charges, so that it appears that the jury was not overcome by the evidence of the earlier crime.
The defendant does not contest his guilt of criminal possession of a weapon. His contention at the trial was that it was illogical for him to shoot at armed police, and in response to that contention, it was necessary to show that he was seeking to avoid capture for the previous crime. The evidence of guilt is overwhelming and to remand for a new trial on the counts of criminal possession of a weapon in the second and third degrees, based on a Molineux issue, would seem to be inappropriate.
Sullivan, Ellerin and Smith, JJ., concur with Carro, J.; Kupferman, J. P., dissents in an opinion.
Judgment, Supreme Court, New York County, rendered on or about June 2, 1987, reversed, on the law, and the matter remanded for a new trial.