Opinion
Argued March 22, 1983
Decided March 31, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, IVAN WARNER, J.
Mario Merola, District Attorney ( Robin Dolsky and Steven R. Kartagener of counsel), for appellant.
Barry D. Leiwant and William E. Hellerstein for Calvin Davis, respondent.
Ronald D. Degen for Benjamin Johnson, respondent.
MEMORANDUM.
The orders of the Appellate Division should be affirmed.
Testimony offered not for the truth of its content but to evidence the fact that the statement was made is not hearsay. Key to the defense offered by defendants was that the victim's wife had shot him when, during a struggle with defendants, the victim had called out to her to "Shoot the bastards." That defendants' version of the events strained credulity does not render the error harmless for credibility is a jury function and there were inconsistencies in and, therefore, problems with the testimony of the victim's wife as well. The prosecution having been permitted to present through the wife its version of what the victim said and having argued to the jury that the wife would not have fired a gun under the circumstances then existing, the error in excluding defendant's version of what those circumstances were cannot be deemed harmless.
We consider irrelevant, in determining whether the error was harmless, the fact that in some instances, defendants had answered questions designed to elicit the erroneously excluded statements before the Trial Judge had an opportunity to rule on the prosecutor's objection thereto. Although in such instances, as the People contend, the statements made during the incident were in fact heard by the jury, it cannot be presumed that the jurors would disregard the Trial Judge's instruction that they could not consider those statements in reaching their verdict.
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.
Orders affirmed in a memorandum.