| People v Byer |
| 2011 NY Slip Op 07720 [89 AD3d 456] |
| November 3, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marvin Byer, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Rither Alabre of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered December 18, 2008,convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to aterm of 25 years to life, unanimously affirmed.
Although the court made several erroneous evidentiary rulings, the evidence of defendant'sguilt was so overwhelming that these errors were harmless. Initially, we note that defendant'sconstitutional claims are unpreserved and without merit, and that the standard relating tononconstitutional harmless error applies (see People v Kello, 96 NY2d 740, 743-744[2001]).
When defendant confessed to a detective, he volunteered that this was not his first "body,"and that there had been nine others. The court concluded that these remarks tended to refutedefendant's claim that his confession had been coerced, because they showed that defendant wasin control of the information he chose to provide. While this evidence had some relevance forthat purpose, its probative value was far outweighed by its potential for prejudice. Accordingly,these remarks should have been redacted.
However, there is no reasonable probability that this error contributed to the conviction. Indetailed oral, written and videotaped confessions, defendant described how he became enraged atthe victim, stabbed her to death, and dismembered and disposed of her body. Moreover,defendant's trial testimony was more inculpatory than exculpatory. He testified that hedismembered and disposed of the body, but that he was not the killer. His explanation for thisbehavior was utterly implausible and had no hope of convincing the jury.
The court also improperly admitted hearsay declarations by several persons. Thesedeclarations did not qualify under any hearsay exception, and since their relevance depended ontheir being true, they were not admissible under the theory that they were not received for their[*2]truth. However, the errors were likewise harmless. Thehearsay declarations added little or nothing to the already overwhelming evidence of guilt.Concur—Mazzarelli, J.P., Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ.