In People v. Primo (96 N.Y.2d 351, 356, 753 N.E.2d 164, 728 N.Y.S.2d 735 [2001]), the Court held that before permitting evidence that another party committed the crime for which a defendant is on trial, the court must balance the probity of the evidence against the prejudicial effect to the People, is determinative of this appeal. In that case, this Court reversed a conviction for attempted murder in the second degree based upon the trial court's exclusion of ballistics evidence tied to another person who was present at the scene. The Court stated (at 357, 753 N.E.2d 164, 728 N.Y.S.2d 735), "The admission of evidence of third-party culpability may not rest on mere suspicion or surmise." The concern is that the evidence of third-party culpability will cause "undue prejudice, delay and confusion" of the evidence presented to the jury. In order to determine whether the evidence will be admitted, the court must allow the defense "to make an offer of proof outside the presence of the jury to explain how it would introduce evidence of third party culpability." Then, the court must allow the prosecutor to make counter-arguments.