People v. Matias

Judgment of the Supreme Court, New York County (P. Bernheim, J.), rendered September 29, 1983, convicting defendant, after trial by jury, of murder in the second degree (Penal Law § 125.25 [1]), and sentencing him to an indeterminate term of 20 years to life in prison, is affirmed.

The facts are fairly stated in the dissent. We note, however, that the empty knife case found in defendant’s apartment was, contrary to the conclusion reached by the dissent, properly admitted into evidence. Circumstantial evidence requires only that it "have relevance, that it tend to convince that the fact sought to be established is so. That it is equivocal or that it is consistent with suppositions other than guilt does not render it inadmissible” (People v Yazum, 13 NY2d 302, 304). Physical evidence is admissible where it is sufficiently connected with the defendant to be relevant. "If it is not so tenuous as to be improbable, it is admissible as is any other evidence which is relevant to an issue in the prosecution” (People v Mirenda, 23 NY2d 439, 453).

The knife case was clearly connected with defendant since it was recovered in his apartment. It was relevant because the victim had been stabbed with a knife which one witness described as a "buck knife,” six inches long when folded. The introduction of the empty case permitted the jury to determine for itself whether the knife described as the murder weapon could have fit into this case. Moreover, since none of the other knives found in defendant’s apartment fit into the empty case, the jury could infer that the case once held the knife which defendant was carrying when he stabbed the victim and then discarded. Although other inferences could be drawn, the admissibility of this evidence was not dependent upon a showing that it permits of only one inference, as would a conviction based solely on circumstantial evidence (People v Mirenda, supra, p 453). Rather, it is admissible so long as it tends to establish defendant’s guilt or innocence. This test was met. People v Jones (62 AD2d 356) and People v Galletti (55 AD2d 154), cited by defendant, are inapposite. Both of these cases involved the introduction into evidence of large quantities of cash found on the defendant at the time of arrest which suggested uncharged drug sales. In People v Rivera (88 AD2d 892), a wristwatch was introduced which the defendant had discarded as the police approached. Since it did not belong to the robbery victim, it suggested evidence of an uncharged robbery. In People v Kitchen (55 AD2d 575), the prosecutor, *898among numerous other errors, displayed a revolver in a murder trial without either connecting it to the crime or, apparently, offering it into evidence. Thus, none of these cases even remotely approaches the facts herein.

Even if the court erred in admitting the knife case into evidence, such error must be deemed harmless. Defendant did not object to testimony about the knife case by a detective. Likewise, defendant did not object to the arguments concerning its significance which were part of the prosecution opening and summation. Thus, defendant cannot fairly argue that the actual introduction of the case into evidence harmed him in any way. The jury knew of its existence and had heard testimony about what it looked like. Its admission merely permitted them to see it. The evidence that defendant intentionally killed the victim was overwhelming, consisting of the corroborated testimony of an eyewitness to the stabbing and the defendant’s own admission to his girlfriend that he stabbed the victim. Given the overwhelming credible evidence, introduction of the knife case, even if error, was harmless.

Finally, the trial court’s response to the jury’s request for additional instruction on intent was complete and correct. After some deliberation, the jury made three requests for further instruction and one request for testimony. Its fifth request was for a definition of intent and what the People "[have] to do to prove intent.” The court responded fully to that request. After the jury had resumed its deliberations, defense counsel complained that the jury should have been reinstructed on the People’s burden of proving the element of intent beyond a reasonable doubt. The jury had, however, repeatedly been instructed by the trial court on the People’s burden of proof. Since the jury raised no question as to the burden of proof on this element of the crime, it can be concluded that it well understood that the People had the burden of proof beyond a reasonable doubt.

We have examined defendant’s remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Asch and Bloom, JJ.; Fein and Milonas, JJ., dissent in a separate memorandum by Milonas, J.