| People v Arnold |
| 2017 NY Slip Op 00778 [147 AD3d 1327] |
| February 3, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Fredderick D. Arnold, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Daniel Gross of counsel), for respondent.
Appeal from a judgment of the Monroe County Court (Melchor E. Castro, A.J.), renderedSeptember 3, 2010. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him, upon a jury verdict, of burglaryin the second degree (Penal Law § 140.25 [2]), defendant challenges County Court'sruling excluding, as inadmissible hearsay, a recording of phone calls defendant made from jailarranging for a relative to pick him up from jail. Defendant contends that the calls werenonhearsay evidence of his state of mind, that they were relevant to his claim that the policecoerced his confession by promising him that he would be released if he confessed, and that thecourt's ruling denied him the right to present a defense.
" 'The mere utterance of a statement, without regard to its truth, may indicatecircumstantially the state of mind of the hearer or of the declarant' " (People v Cromwell, 71 AD3d 414,415 [2010], lv denied 15 NY3d 803 [2010]; see People v Gibian, 76 AD3d 583, 584-585 [2010], lvdenied 15 NY3d 920 [2010]), and we agree with defendant that the calls were admissible ascircumstantial evidence of his state of mind, i.e., his alleged belief that he would be released (see People v Barr, 60 AD3d 864,864 [2009], lv denied 12 NY3d 851 [2009]; People v Boyd, 256 AD2d 350,350-351 [1998]; see generally People v Minor, 69 NY2d 779, 780 [1987]). Contrary tothe People's contention, defendant's state of mind at the time of the calls was relevant to hisdefense, and his statements were not mere assertions of past facts irrelevant unless offered toprove the truth of the matter asserted (cf. People v Reynoso, 73 NY2d 816, 818-819[1988]).
We apply the standard for constitutional error to defendant's preserved contention that theerror denied him the right to present a defense (see People v Powell, 27 NY3d 523, 529 [2016]; cf. People vKello, 96 NY2d 740, 743-744 [2001]), and we conclude that the error is harmless under thatstandard, inasmuch as the evidence of guilt is overwhelming and there is no reasonablepossibility that the error contributed to defendant's conviction (see People v Crimmins, 36NY2d 230, 237 [1975]; Barr, 60 AD3d at 864-865). Notably, defendant and his witnessestestified that defendant called his cousin from jail and that his cousin and uncle attempted to pickhim up in response to that call, and the jury thus heard other evidence of defendant's state ofmind (see People v Starostin, 265 AD2d 267, 268 [1999], lv denied 94 NY2d 885[2000]; People v Robles, 201 AD2d 591, 592 [1994], lv denied 83 NY2d 876[1994]). Present—Whalen, P.J., Smith, Peradotto, DeJoseph and Curran, JJ.