PEOPLE v. JACOBS (2000)

Judgment, Supreme Court, New York County (Jeffrey Atlas, J.), rendered July 20, 1998, convicting defendant, after a jury trial, of three counts of repeated failure to file personal income and earnings taxes and two counts of failure to file a return or report or supply information, and sentencing him to three terms of 1 to 3 years and two terms of 1 year, all to be served concurrently, and to make restitution of $39,294.47, unanimously affirmed.   The matter is remitted to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50(5).

 The court properly excluded testimony from defendant's former coworker about his conversations with defendant regarding their belief that certain City employees, including defendant, were not required to file New York State returns.   Although defendant's state of mind was relevant, this evidence was inadmissible as hearsay in the context of the case because it was offered “to establish the past fact of defendant's prior beliefs” (People v. Reynoso, 73 N.Y.2d 816, 819, 537 N.Y.S.2d 113, 534 N.E.2d 30).   In any event, were we to find any error, we would find it to be harmless.   To the extent that defendant is raising a claim that, notwithstanding the rules of evidence, the evidence should have been admitted as a matter of constitutional law, such claim is unpreserved (People v. Benjamin, 272 A.D.2d 276, 709 N.Y.S.2d 517), and we decline to review it in the interest of justice.

We perceive no basis for a reduction of sentence.

MEMORANDUM DECISION.