PEOPLE v. KELLY (2010)

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25[1] ).   Defendant failed to preserve for our review his contention that Supreme Court erred in its Molineux ruling (see CPL 470.05[2];  People v. Francis, 63 A.D.3d 1644, 1645, 879 N.Y.S.2d 880, lv. denied 13 N.Y.3d 835, 890 N.Y.S.2d 451, 918 N.E.2d 966).   In any event, that contention is without merit.   The evidence in question, i.e., evidence concerning prior incidents of domestic violence between defendant and decedent, was relevant with respect to defendant's motive and intent (see People v. Nelson, 57 A.D.3d 1441, 1442, 871 N.Y.S.2d 535;  People v. James, 19 A.D.3d 616, 797 N.Y.S.2d 129, lv. denied 5 N.Y.3d 807, 803 N.Y.S.2d 36, 836 N.E.2d 1159;  People v. Williams, 241 A.D.2d 911, 663 N.Y.S.2d 1023, lv. denied 91 N.Y.2d 837, 667 N.Y.S.2d 691, 690 N.E.2d 500), and its probative value exceeded its potential for prejudice to defendant (see Williams, 241 A.D.2d 911, 663 N.Y.S.2d 1023).   We agree with defendant, however, that the court erred in allowing the People to present testimony concerning sexual material possessed by defendant.   That testimony was not relevant and, in any event, any probative value was substantially outweighed by the prejudice to defendant (cf. id.;   see generally People v. Scarola, 71 N.Y.2d 769, 777, 530 N.Y.S.2d 83, 525 N.E.2d 728).   We nevertheless conclude that the error is harmless (see People v. Odom, 53 A.D.3d 1084, 1087, 861 N.Y.S.2d 892, lv. denied 11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104).   The evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant would have been acquitted but for the admission of that testimony (see generally People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   Contrary to the further contention of defendant, he received effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).   Finally, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

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

MEMORANDUM: