People v Woods

People v Woods 2011 NY Slip Op 00404 Decided on January 18, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 18, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
RUTH C. BALKIN
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS, JJ.
2009-03819
(Ind. No. 6797/07)

[*1]The People, etc., respondent,

v

Lee Woods, appellant.




Patrick Michael Megaro, Uniondale, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard
Joblove and Diane R. Eisner of
counsel), for respondent.


DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J., at trial; Gerges, J., at sentencing), rendered April 1, 2009, convicting him of aggravated murder, attempted aggravated murder, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

"If upon cross-examination a witness' testimony is assailed—either directly or inferentially—as a recent fabrication, the witness may be rehabilitated with prior consistent statements that predated the motive to falsify" (People v McDaniel, 81 NY2d 10, 18). During cross-examination, defense counsel inferred that the prosecution witness's testimony was a recent fabrication because she had received certain benefits from the police. By doing so, defense counsel opened the door for the prosecution to rehabilitate the witness's credibility with a prior consistent statement that predated the motive to fabricate (id. at 18; see People v Sing Yuen Chen, 253 AD2d 898, 899). The prior consistent statement did not need to predate all motives to fabricate (see People v Baker, 23 NY2d 307, 322-323; People v Jones, 289 AD2d 47, 47-48; People v Kanani, 272 AD2d 186, 187). Accordingly, the Supreme Court correctly admitted the witness's prior consistent statement.

Any error in instructing the jury on the presumption contained in Penal Law § 265.15(3) was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions (see People v Crimmins, 36 NY2d 230, 241-242; People v Mace, 91 AD2d 864; cf. People v Williams, 146 AD2d 659, 660-661).

The defendant's challenge to the Supreme Court's supplemental instructions on the counts charging criminal possession of a weapon in the second degree is unpreserved for appellate review, and we decline to review it in the exercise of our interest of justice jurisdiction (see People v Harrison, 194 AD2d 627). [*2]

The defendant's remaining contention is without merit.
DILLON, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court