| People v Kelly |
| 2010 NY Slip Op 02350 [71 AD3d 1520] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v ThomasKelly, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Wendy Evans Lehmann of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),rendered June 20, 2006. The judgment convicted defendant, upon a jury verdict, of murder in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofmurder in the second degree (Penal Law § 125.25 [1]). Defendant failed to preserve forour review his contention that Supreme Court erred in its Molineux ruling (seeCPL 470.05 [2]; People v Francis,63 AD3d 1644, 1645 [2009], lv denied 13 NY3d 835 [2009]). In any event, thatcontention is without merit. The evidence in question, i.e., evidence concerning prior incidents ofdomestic violence between defendant and decedent, was relevant with respect to defendant'smotive and intent (see People vNelson, 57 AD3d 1441, 1442 [2008]; People v James, 19 AD3d 616 [2005], lv denied 5 NY3d807 [2005]; People v Williams, 241 AD2d 911 [1997], lv denied 91 NY2d 837[1997]), and its probative value exceeded its potential for prejudice to defendant (seeWilliams, 241 AD2d 911 [1997]). We agree with defendant, however, that the court erred inallowing the People to present testimony concerning sexual material possessed by defendant.That testimony was not relevant and, in any event, any probative value was substantiallyoutweighed by the prejudice to defendant (cf. id.; see generally People v Scarola,71 NY2d 769, 777 [1988]). We nevertheless conclude that the error is harmless (see People v Odom, 53 AD3d1084, 1087 [2008], lv denied 11 NY3d 792 [2008]). The evidence of defendant'sguilt is overwhelming, and there is no significant probability that defendant would have beenacquitted but for the admission of that testimony (see generally People v Crimmins, 36NY2d 230, 241-242 [1975]). Contrary to the further contention of defendant, he receivedeffective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]).Finally, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Smith,J.P., Centra, Lindley, Sconiers and Pine, JJ.