People v. Mitchell

Judgment affirmed. Memorandum: Defendant appeals from his conviction for murder, second degree. The autopsy of the victim’s body revealed 11 stab wounds on the face, chest, and back, four of which penetrated the aortic arch, liver, and heart. While the charge to the jury that “a person is presumed to intend the natural and probable consequences of his act, and, accordingly, if the consequences are natural and probable, he will not be heard to say that he did not intend them” was error (see Sandstrom v Montana, 442 US 510; People v Harris, 77 AD2d 804; People v Egan, 72 AD2d 239), we find the error to have been harmless (see People v Crimmins, 36 NY2d 230; People v Cadorette, 83 AD2d 908; cf. People v Green, 77 AD2d 665). The evidence of defendant’s guilt was overwhelming, and the question of intent was not a “vital issue at trial” (People v Getch, 50 NY2d 456, 465; see People v Thomas, 50 NY2d 467, 475-480, Fuchsberg, J., concurring; cf. People v Harris, supra; People v Egan, supra, p 243). There was no error in the court’s finding admissible the testimony of two secretaries and a paralegal concerning statements made by defendant to them in the common waiting room shared by defendant’s attorney with another lawyer. Defendant made the statements while his attorney was away from his office and before defendant had had an opportunity to consult with him on this matter. Under the circumstances, defendant could not reasonably have expected that the communication would be confidential nor could the communication have been for the purposes of securing legal advice or assistance (see CPLR 4503; Matter of Priest v Hennessy, 51 NY2d 62, 68-69; People v Belge, 59 AD2d 307; People v Doe, 99 Misc 2d 411). We have considered defendant’s other arguments and find them to be without merit. All concur, except Callahan, J., who dissents and votes to reverse and grant a new trial in the following memorandum.