PEOPLE v. NARROD (2005)

Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25[1] ) and arson in the third degree (§ 150.10[1] ).   Defendant contends that Supreme Court erred in precluding him from presenting evidence that a third party may have committed the crimes charged based on the court's determination that defendant failed to establish a “clear link” between the third party and the crimes charged.   We reject that contention.   The record establishes that, regardless of the court's use of the “clear link” language, the court properly applied “the general balancing analysis that governs the admissibility of all evidence” and precluded defendant from presenting the proffered evidence because it was based on mere speculation (People v. Primo, 96 N.Y.2d 351, 356, 728 N.Y.S.2d 735, 753 N.E.2d 164;  see People v. Williams, 291 A.D.2d 897, 897-898, 737 N.Y.S.2d 737, lv. denied 97 N.Y.2d 763, 742 N.Y.S.2d 624, 769 N.E.2d 370;  People v. Joaquin, 242 A.D.2d 589, 590, 664 N.Y.S.2d 735, lv. denied 91 N.Y.2d 893, 669 N.Y.S.2d 7, 691 N.E.2d 1033).

 Defendant further contends that the court erred in allowing the arson investigator to testify that he had ruled out accidental causes of the fire.   We agree, inasmuch as the expert's testimony improperly invaded the jury's province (see People v. Champion, 247 A.D.2d 901, 668 N.Y.S.2d 857, lv. denied 91 N.Y.2d 971, 672 N.Y.S.2d 850, 695 N.E.2d 719;  People v. Avellanet, 242 A.D.2d 865, 866, 662 N.Y.S.2d 345, lv. denied 91 N.Y.2d 868, 668 N.Y.S.2d 566, 691 N.E.2d 638).   We conclude, however, that the evidence of defendant's guilt is overwhelming and that there is no significant probability that absent the error the jury would have acquitted defendant.   Thus, the error is harmless (see Avellanet, 242 A.D.2d at 866, 662 N.Y.S.2d 345;  see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

We have considered the remaining contentions of defendant, including those raised in his pro se supplemental brief, and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: