This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 137 

The People &c.,

 Respondent,

 v.

Dupree Harris,

 Appellant.

Mark W. Vorkink, for appellant.

Morgan J. Dennehy, for respondent.

PIGOTT, J.:

The order of the Appellate Division should be affirmed.

This case involves the interplay between two murders

and three criminal trials; the third trial is the subject of this

appeal. 

In September 2001, defendant's half-brother, Wesley

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Sykes, fatally shot Dennis Brown. There were numerous witnesses

to the crime, including three teenaged girls. Each girl gave a

statement to the police identifying Sykes as the shooter. 

While Sykes was awaiting trial, defendant began

cultivating a relationship with each girl. Eventually, the girls

agreed to go with defendant to Sykes's attorney's office and

recant their prior identifications. Afterwards, defendant gave

each of them money. It is these acts that led to defendant being 

charged with three counts each of witness tampering (Penal Law §

215.11 [2]) and bribery (Penal Law § 215.00).

As the trial of Sykes for the murder of Brown was about

to begin, another eyewitness to the Brown shooting, Bobby Gibson,

was shot and killed outside the apartment of one of the three

girls. The shooting was so close, she heard the shots and saw

Gibson's body outside her window. Fearing a similar fate, the

girls revealed to police that they had taken money from defendant

who had asked them to recant their identifications and not

testify against Sykes. The girls were then placed in protective

custody. They all testified at the Sykes trial and a jury

ultimately convicted Sykes of Brown's murder. 

A man named Travis Ragsdale later confessed to the

murder of Gibson. He claimed the murder resulted from an

alcohol-fueled dispute, and denied that the incident was related

to the Brown murder. Ragsdale was ultimately convicted of murder

in the second degree for the Gibson killing.

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Prior to defendant's bribery and witness tampering

trial, defense counsel moved to preclude evidence of the murder

of the witness Gibson, asserting that it was entirely irrelevant

to the charges in this case because defendant did not even know

the man who shot and killed Gibson. He argued that the admission

of the evidence would be prejudicial and make it impossible for

defendant to have a fair trial. The prosecutor responded that

the two cases were interwined; that Gibson was killed on the eve

of Sykes's trial, and the three eyewitnesses at issue in

defendant's trial had come forward because of Gibson's murder. 

The prosecutor also explained that all three girls had been

relocated in response to Gibson's death and their bribery

allegations against defendant.

The trial court ruled that evidence of Gibson's murder 

was necessary for the jury to consider the truthfulness and

reliability of the three girls. During voir dire, the court

instructed the venire that defendant was not involved in that

murder; and at the start of trial, reminded the prosecutor not to

"belabor" Gibson's murder, emphasizing that he was prohibited

from bringing in any evidence suggesting that defendant was

connected to Gibson's death. The defense introduced a video

statement of Ragsdale wherein he stated that he shot Gibson out

of anger and not because he was a witness to the Brown shooting.

In its charge to the jury during the trial, the court 

gave the following limiting instruction with respect to the 

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Gibson murder: 

"Defendant has not been charged with causing

the death of the witness Bobby Gibson. The

People have introduced evidence regarding

Gibson's death for the purpose of explaining

the state of mind of the three [teenage

witnesses]. . . , and to provide the

background for their participation in the

witness protection program of the District

Attorney's office.

The defense has introduced the video

statements of Travis Ragsdale who has been

convicted of the murder of Bobby Gibson for

the truth of that statement, and you will

evaluate its credibility as you will evaluate

the credibility of all witnesses and

determine what witnesses you will give such

weight".

The jury acquitted defendant of all three tampering

counts, but convicted him of the bribery counts. 

Defendant appealed arguing, as relevant here, that he

was deprived of a fair trial because the court allowed the People

to elicit evidence of the Gibson murder. He asserted that this

evidence was not probative and was extremely prejudicial. 

Defendant also argued that he was denied due process when the

prosecutor suggested repeatedly in summation that he was

responsible for Gibson's death. The Appellate Division, with one

Justice dissenting, affirmed (117 AD3d 847 [2d Dept 2013]).

Generally, "all relevant evidence is admissible unless

its admission violates some exclusionary rule" (People v Scarola,

71 NY2d 769, 777 [1988]). "Evidence is relevant if it has any

tendency in reason to prove the existence of any material fact"

(id. at 777). However, "[e]ven where relevant evidence is

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admissible, it may still be excluded in the exercise of the trial

court's discretion if its probative value is substantially

outweighed by the potential for prejudice" (People v Mateo, 2

NY3d 383, 424–425 [2004]; see Scarola, 71 NY2d at 777).

 Here, the evidence of Gibson's murder was relevant for

several reasons. It showed the state of mind of the three girls

and provided an explanation as to why they abandoned their

recantations and told police about their deal with defendant. It

also explained why the girls were placed in protective custody

prior to the trial. Additionally, it allowed the jury to have

all of the relevant facts before it to decide whether to credit

defense counsel's arguments or the three girls' testimony

concerning the charges against defendant. 

While possible prejudice could arise from the testimony

in that the jury might link defendant to the Gibson murder, that

prejudice was minimized by the court's limiting instruction. The

court, in its final charge, made clear that defendant had not

been charged with causing the death of Gibson. In addition, the

prosecutor had stated plainly in his opening statement and

summation that there was no evidence that defendant was involved. 

Thus, we conclude that the court's decision to admit the evidence

of Gibson's murder was not an abuse of discretion.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Pigott. Chief Judge Lippman

and Judges Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided October 15, 2015

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