Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (James M. Burke, J.), rendered June 10, 2009, after a jury trial, convicting him of assault in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (James M. Burke, J.), rendered June 10, 2009, reversed, on the law, and new trial ordered.

As the People candidly concede, the trial court erred in modifying its pretrial Molineux ruling (see People v Molineux, 168 NY 264 [1901]) in the middle of trial to permit defendant to be cross-examined about a 2001 incident involving him and the complainant herein (which led to the filing of assault charges against defendant that ultimately were dropped), an incident which the court initially ruled was to be excluded. The defendant's mere denial that he engaged in the assaultive conduct underlying the within charges was insufficient to "open the door" to cross-examination about his potential involvement in the 2001 incident (see People v Crandall, 67 NY2d 111 [1986]; People v Moore, 92 NY2d 823 [1998]), and the People appropriately acknowledge the point on appeal. Although the trial court attempted to ameliorate the prejudice to defendant via limiting instructions to the jury, we cannot conclude that the error was harmless beyond a reasonable doubt (see People v Crimmins, 36 NY2d 230, 241-242 [1975]), particularly since the 2001 incident was factually analogous to the altercation giving rise to the charged crime (see People v Wallace, 31 AD3d 1041, 1044-1045 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: September 07, 2012