SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

322 

KA 08-02465 

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MARTIN D. WOODS, DEFENDANT-APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF

COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Monroe County Court (John R.

Schwartz, A.J.), rendered August 18, 2008. The judgment convicted

defendant, upon a jury verdict, of robbery in the first 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, of robbery in the first degree (Penal Law §

160.15 [4]). We agree with defendant that County Court erred in

failing to consider the appropriate factors when it allowed the jury

to hear portions of defendant’s grand jury testimony that included

references to being on parole, serving five years for robbing banks,

and having on occasion sold drugs. “Prejudicial material ‘not

necessary to a full comprehension of the’ directly related evidence .

. . is inadmissible, even though part of the same conversation . . .

or, indeed, of the same sentence” (People v Ely, 68 NY2d 520, 531). 

That principle applies to the admission at trial of a defendant’s

grand jury testimony just as it does to, e.g., audio recordings of

telephone conversations (see id.; People v Ward, 62 NY2d 816, 818),

statements made during the course of a crime to an undercover police

officer (see People v Crandall, 67 NY2d 111, 116-117), and admissions

made to police officers during custodial interrogation (see People v

Sanchez, 262 AD2d 997, 997-998, lv denied 94 NY2d 866; People v Gates,

234 AD2d 941, 941, lv denied 89 NY2d 1011; People v Mitchell, 203 AD2d

948, 949, lv denied 83 NY2d 969). The court allowed the jury to hear

such portions of defendant’s grand jury testimony after concluding

only that the statements were voluntary. In doing so, the court

failed to consider whether such evidence was relevant and probative to

any issue in this case (see generally People v Ventimiglia, 52 NY2d

350, 359-360) and then, if so, whether “its probative value exceed[ed]

the potential for prejudice resulting to the defendant” (People v
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KA 08-02465 

Alvino, 71 NY2d 233, 242). 

We conclude, in any event, that the admission of those portions

of defendant’s grand jury testimony is harmless error inasmuch as

there is overwhelming evidence of guilt, and there is no significant

probability that defendant otherwise would have been acquitted (see

People v Orbaker, 302 AD2d 977, 978, lv denied 100 NY2d 541; see

generally People v Crimmins, 36 NY2d 230, 241-242). The evidence

included the testimony of defendant’s accomplice who entered the store

and committed the robbery in question while defendant waited outside;

the store’s video surveillance showing defendant outside the store at

the time of the robbery; and statements made by defendant to the

police while in custody. We have considered defendant’s remaining

contentions and conclude that none requires reversal or modification

of the judgment.

Entered: March 22, 2013 Frances E. Cafarell

Clerk of the Court