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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