Opinion
Argued June 13, 1975
Decided July 10, 1975
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, DAVID O. BOEHM, J.
Alfred P. Kremer for appellant.
Jack B. Lazarus, District Attorney (Christopher J. Enos of counsel), for respondent.
MEMORANDUM. While we would affirm the order of the Appellate Division, we disagree with the view taken by the majority of that court that certain testimony was hearsay.
The testimony given by Brunson, the victim of this assault and attempted robbery, to the effect that a bystander stated, when the defendant approached Brunson, that "this Joe is going to take your money" was not hearsay. The testimony was offered not to establish the truth or falsity of the statement, but simply for the purpose of showing that the statement was made. (Richardson, Evidence [10th ed], § 203; McCormick, Evidence [2d ed], § 249, p 588.) The testimony was clearly relevant in that it served to explain Brunson's otherwise irrational conduct in jumping on the table and running away from the premises.
I concur in the result. In my opinion the statement referred to in the majority memorandum is hearsay. Since the victim's state of mind, at the time of hearing the statement, was not material or relevant, the statement is not one of the apparent exceptions to the hearsay rule contemplated and discussed in section 203 of Richardson on Evidence (Prince — 10th ed). Although error, I believe it was harmless under the circumstances of this case, particularly in view of other statements made at about the same time.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES and FUCHSBERG concur in memorandum; Judge COOKE concurs in a separate opinion in which Judge WACHTLER concurs.
Order affirmed.