
    The People of the State of New York, Appellant, v Anthony Ross, Respondent.
    [643 NYS2d 621]
   Appeal by the People from an order of the Supreme Court, Kings County (Owens, J.), entered June 28, 1995, which granted the defendant’s motion to set aside a jury verdict convicting him of murder in the second degree and criminal possession of a weapon in the third degree.

Ordered that the order is affirmed.

The defendant was indicted, tried before a jury, and convicted of murder in the second degree and criminal possession of a weapon in the third degree, arising out of an incident in which he allegedly shot and killed a taxicab driver for overcharging him. During the trial, one of the defense witnesses, in response to questions posed by the court, disclosed to the jury that the defendant was currently in prison, having been convicted of another murder. The defendant requested a mistrial or, in the alternative, a curative instruction.

The court denied the motions and allowed the case to go to the jury, but when the jury rendered its verdict the defendant moved to set it aside. The court then granted the motion.

We agree with the court’s determination that the potential for prejudice to the defendant was considerable, and that it was error to have elicited testimony regarding the defendant’s prior conviction and incarceration (see, People v Blanchard, 83 AD2d 905). Moreover, on this record, it cannot be said that the error was harmless (see, People v Crimmins, 36 NY2d 230). Rosenblatt, J. P., Miller, Pizzuto and Goldstein, JJ., concur.  