People v. Marks

Appeal by the defendant from a judgment of the Supreme Court, Kings County (R. Goldberg, J.), rendered August 4, 1994, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was convicted, along with a codefendant (People v Fortune, 243 AD2d 646 [decided herewith]), of a murder at a health food store in Brooklyn. The defendant and the codefendant were both apprehended by the police in an abandoned building in close proximity to discarded jackets resembling ones worn during the shooting. The codefendant was also in close proximity to a nine millimeter handgun identified as one of the murder weapons. The defendant admitted that he was at the store at the time of the shooting, but denied any involvement in the murder. However, he was identified as a participant by an eyewitness who had known the defendant for ten years.

On appeal, the defendant argues that he was denied a fair trial because the prosecutor was allowed to elicit hearsay testimony that the defendant and others had intended to rob the store. However, in light of the overwhelming evidence of guilt, any error in the admission of such testimony was harmless (see, People v Cook, 42 NY2d 204; People v Crimmins, 36 NY2d 230). Ritter, J. P., Friedmann, Krausman and McGinity, JJ., concur.