PEOPLE v. HARVEY (2000)

 Defendant contends that County Court erred in permitting the People to introduce testimony in their case-in-chief concerning previous incidents of domestic violence by defendant toward decedent.   We disagree.   That testimony was relevant to establish defendant's motive and intent (see, People v. Guiteau, 267 A.D.2d 1094, 701 N.Y.S.2d 230;  People v. Flowers, 245 A.D.2d 1088, 667 N.Y.S.2d 546, lv. denied 91 N.Y.2d 972, 672 N.Y.S.2d 851, 695 N.E.2d 720;  People v. Avellanet, 242 A.D.2d 865, 662 N.Y.S.2d 345, lv. denied 91 N.Y.2d 868, 668 N.Y.S.2d 566, 691 N.E.2d 638), and the probative value of that evidence exceeded its potential for prejudice (see, People v. Moore, 42 N.Y.2d 421, 428, 397 N.Y.S.2d 975, 366 N.E.2d 1330, cert. denied 434 U.S. 987, 98 S.Ct. 617, 54 L.Ed.2d 482;  People v. Flowers, supra ).   Although the court erred in permitting the People to introduce the statements of decedent to third parties that on previous occasions defendant physically abused her (see, People v. Maher, 89 N.Y.2d 456, 462, 654 N.Y.S.2d 1004, 677 N.E.2d 728;  People v. Flowers, supra ), that error is harmless.   Because defendant's objection to the admission of that evidence was based on a violation of a rule of evidence rather than defendant's constitutional right of confrontation, the harmless error standard for review is whether there is a significant probability that defendant would have been acquitted had those statements not been admitted (see, People v. Maher, supra, at 462, 654 N.Y.S.2d 1004, 677 N.E.2d 728).   Here, the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the error (see, People v. Maher, supra, at 462-463, 654 N.Y.S.2d 1004, 677 N.E.2d 728;  People v. Flowers, supra ).   The erroneously admitted statements were cumulative of testimony of the People's witnesses, who observed defendant's abuse of decedent and heard defendant's admissions of the abuse.

 We further conclude that the court properly denied defendant's request to introduce hearsay evidence of certain statements as declarations against penal interest.  “Hearsay evidence is admissible as a declaration against penal interest only if four prerequisites are met:  (1) the declarant must be unavailable to give testimony, whether by reason of absence from the jurisdiction, refusal to testify on constitutional grounds or death;  (2) the declarant must have been aware at the time of its making that the statement was contrary to his penal interest;  (3) the declarant must have competent knowledge of the underlying facts;  and (4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability [citations omitted]” (People v. Thomas, 68 N.Y.2d 194, 197, 507 N.Y.S.2d 973, 500 N.E.2d 293, cert. denied 480 U.S. 948, 107 S.Ct. 1609, 94 L.Ed.2d 794).   The assertion of defense counsel that his private investigator was unable to locate the declarant failed to establish that he was absent from the jurisdiction and thus unavailable (see generally, People v. Gates, 234 A.D.2d 941, 652 N.Y.S.2d 679, lv. denied 89 N.Y.2d 1011, 658 N.Y.S.2d 250, 680 N.E.2d 624;  People v. Anderson, 153 A.D.2d 893, 895-896, 545 N.Y.S.2d 604, lv. denied 74 N.Y.2d 894, 548 N.Y.S.2d 427, 547 N.E.2d 954).   Moreover, defendant failed to establish that, when the declarant made the alleged incriminating statement, he was aware that the statement was contrary to his penal interest.   The witness who heard that statement testified that she did not understand it to mean that the declarant killed the victim.   Defendant therefore failed to establish that the declarant knew at the time he made the statement that it was against his penal interest (see generally, Prince, Richardson on Evidence § 8-411, at 622 [Farrell 11th ed.] ).

We further conclude that the court properly denied defendant's request to excuse three prospective jurors for cause (see generally, People v. Williams, 63 N.Y.2d 882, 884-885, 483 N.Y.S.2d 198, 472 N.E.2d 1026;  People v. Harris, 57 N.Y.2d 335, 350-351, 456 N.Y.S.2d 694, 442 N.E.2d 1205, cert. denied 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 803;  People v. Campo, 156 A.D.2d 375, 548 N.Y.S.2d 330, lv. denied 75 N.Y.2d 867, 553 N.Y.S.2d 298, 552 N.E.2d 877).   We have reviewed defendant's remaining contention and conclude that it is without merit.

Judgment unanimously affirmed.

MEMORANDUM: