        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
