PEOPLE v. EWELL

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Mike EWELL, appellant.

Decided: November 22, 2004

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, STEVEN W. FISHER, and ROBERT A. LIFSON, JJ. Lynn W.L. Fahey, New York, N.Y. (Bertrand J. Kahn of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered June 27, 2001, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Contrary to the defendant's contention, the court did not violate his right to confront a witness when it permitted a detective to testify that he told the defendant that a codefendant had placed him at the scene of the killing.   Such testimony was properly admitted into evidence not for its truth but to explain why the defendant confessed to the police when he did.   The court properly instructed the jury that the testimony was admitted for the limited purpose of explaining the detective's actions and their effect on the defendant, and not for the truth of the codefendant's statement (see Tennessee v. Street, 471 U.S. 409, 413-417, 105 S.Ct. 2078, 85 L.Ed.2d 425;  People v. Reynoso, 2 N.Y.3d 820, 781 N.Y.S.2d 284, 814 N.E.2d 456;  People v. Perez, 9 A.D.3d 376, 779 N.Y.S.2d 584, lv. denied 3 N.Y.3d 710;  People v. Hughes, 251 A.D.2d 513, 674 N.Y.S.2d 402).

The defendant's remaining contentions either are without merit or relate to harmless error in light of the overwhelming evidence of guilt (see People v. Perez, supra;  see generally People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787).

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