Opinion
02-03-2017
The PEOPLE of the State of New York, Respondent, v. Fredderick D. ARNOLD, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of Counsel), for Respondent.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DeJOSEPH, AND CURRAN, JJ.
MEMORANDUM:
On appeal from a judgment convicting him, upon a jury verdict, of burglary in the second degree (Penal Law § 140.25[2] ), defendant challenges County Court's ruling excluding, as inadmissible hearsay, a recording of phone calls defendant made from jail arranging for a relative to pick him up from jail. Defendant contends that the calls were nonhearsay evidence of his state of mind, that they were relevant to his claim that the police coerced his confession by promising him that he would be released if he confessed, and that the court's ruling denied him the right to present a defense.
" ‘The mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind of the hearer or of the declarant’ " (People v. Cromwell, 71 A.D.3d 414, 415, 897 N.Y.S.2d 35, lv. denied 15 N.Y.3d 803, 908 N.Y.S.2d 163, 934 N.E.2d 897 ; see People v. Gibian, 76 A.D.3d 583, 584–585, 907 N.Y.S.2d 226, lv. denied 15 N.Y.3d 920, 913 N.Y.S.2d 647, 939 N.E.2d 813 ), and we agree with defendant that the calls were admissible as circumstantial evidence of his state of mind, i.e., his alleged belief that he would be released (see People v. Barr, 60 A.D.3d 864, 864, 874 N.Y.S.2d 384, lv. denied 12 N.Y.3d 851, 881 N.Y.S.2d 662, 909 N.E.2d 585 ; People v. Boyd, 256 A.D.2d 350, 350–351, 683 N.Y.S.2d 271 ; see generally People v. Minor, 69 N.Y.2d 779, 780, 513 N.Y.S.2d 107, 505 N.E.2d 617 ). Contrary to the People's contention, defendant's state of mind at the time of the calls was relevant to his defense, and his statements were not mere assertions of past facts irrelevant unless offered to prove the truth of the matter asserted (cf. People v. Reynoso, 73 N.Y.2d 816, 818–819, 537 N.Y.S.2d 113, 534 N.E.2d 30 ).
We apply the standard for constitutional error to defendant's preserved contention that the error denied him the right to present a defense (see People v. Powell, 27 N.Y.3d 523, 529, 35 N.Y.S.3d 675, 55 N.E.3d 435 ; cf. People v. Kello, 96 N.Y.2d 740, 743–744, 723 N.Y.S.2d 111, 746 N.E.2d 166 ), and we conclude that the error is harmless under that standard, inasmuch as the evidence of guilt is overwhelming and there is no reasonable possibility that the error contributed to defendant's conviction (see People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; Barr, 60 A.D.3d at 864–865, 874 N.Y.S.2d 384 ). Notably, defendant and his witnesses testified that defendant called his cousin from jail and that his cousin and uncle attempted to pick him up in response to that call, and the jury thus heard other evidence of defendant's state of mind (see People v. Starostin, 265 A.D.2d 267, 268, 698 N.Y.S.2d 6, lv. denied 94 N.Y.2d 885, 705 N.Y.S.2d 17, 726 N.E.2d 494 ; People v. Robles, 201 A.D.2d 591, 592, 609 N.Y.S.2d 803, lv. denied 83 N.Y.2d 876, 613 N.Y.S.2d 136, 635 N.E.2d 305 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.