PEOPLE v. HYLAND (2019)

DECISION & ORDER

ORDERED that the judgment is affirmed.

In January 2015, the victim allegedly was assaulted and robbed by the defendant, the codefendant, and an unidentified individual.  The defendant and the codefendant were charged with, among other things, robbery in the first degree and assault in the second degree under an acting-in-concert theory.  At the jury trial, the victim testified that he, the defendant, and the codefendant were members of a gang, and that he believed the attack to be gang-related in that he was accused by the codefendant of “snitch[ing]” on another gang member.  After the trial, the jury found the defendant guilty of two counts of robbery in the first degree, one count of robbery in the second degree, two counts of assault in the second degree, and one count of criminal possession of a weapon in the third degree.  The defendant appeals.

Contrary to the defendant's contention, the evidence regarding his membership in a gang was relevant to the issue of motive and to explain the relationship among the parties (see People v. Guerrero, 150 A.D.3d 883, 55 N.Y.S.3d 67;  People v. Ford, 133 A.D.3d 442, 20 N.Y.S.3d 13;  People v. Tyrell, 82 A.D.3d 1352, 918 N.Y.S.2d 636;  People v. Cain, 16 A.D.3d 288, 792 N.Y.S.2d 60).  Since the probative value of this evidence outweighed the prejudice to the defendant, the Supreme Court providently exercised its discretion in permitting the People to present such evidence (see People v. Gonzales–Martinez, 136 A.D.3d 651, 652, 23 N.Y.S.3d 907;  People v. Bruno, 127 A.D.3d 986, 986, 7 N.Y.S.3d 408;  People v. Guevara, 96 A.D.3d 781, 781–782, 948 N.Y.S.2d 70).

We agree with the Supreme Court's determination to admit into evidence statements attributed to the nontestifying codefendant, as the statements were not admitted for the truth of the matter asserted.  “[T]he mere utterance of a statement, without regard to its truth, may indicate circumstantially the state of mind of the hearer or of the declarant” (People v. Gibian, 76 A.D.3d 583, 584, 907 N.Y.S.2d 226 [internal quotation marks omitted];  see People v. Hall, 160 A.D.3d 210, 74 N.Y.S.3d 143;  People v. Arnold, 147 A.D.3d 1327, 46 N.Y.S.3d 352;  People v. Cromwell, 71 A.D.3d 414, 415, 897 N.Y.S.2d 35).  In this case, the statements at issue were admitted not for their truth, but to establish the victim's state of mind upon hearing them (see People v. Arnold, 147 A.D.3d 1327, 46 N.Y.S.3d 352;  People v. Gibian, 76 A.D.3d 583, 907 N.Y.S.2d 226;  People v. Cromwell, 71 A.D.3d 414, 897 N.Y.S.2d 35), and to provide a basis upon which the jury could infer accessorial liability (see People v. Ayala, 273 A.D.2d 40, 709 N.Y.S.2d 528).  Additionally, the statements were admissible for the nonhearsay purpose of completing the narrative (see id.).  In light of the foregoing, we need not reach the defendant's remaining contentions regarding this issue.

Contrary to the defendant's contention, the amendment of the indictment to reflect that the defendant and the codefendant acted in concert with the unnamed individual did not change the theory of the case or unduly prejudice the defendant.  The amendment was consistent with the initial theory, of which the defendant had notice, that he acted with another to commit a robbery (see CPL 200.70;  People v. Davis, 273 A.D.2d 476, 712 N.Y.S.2d 363;  People v. Christie, 210 A.D.2d 497, 620 N.Y.S.2d 990;  People v. Roseboro, 182 A.D.2d 784, 785, 582 N.Y.S.2d 780;  People v. Budhai, 182 A.D.2d 693, 582 N.Y.S.2d 730).

DILLON, J.P., BALKIN, MILLER and IANNACCI, JJ., concur.