Opinion
1999-09665
Submitted March 22, 2002.
June 18, 2002.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered September 28, 1999, convicting him of assault in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (De Nice Powell of counsel), for appellant, and appellant pro se.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Shulamit Rosenblum of counsel; Chong-Ho Chung on the brief), for respondent.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
ORDERED that the judgment is affirmed.
The defendant's contention that the admission of testimony from the complainant's daughter, the detective who interviewed the daughter, and the investigating detective constituted improper bolstering is unpreserved for appellate review (see CPL 470.05; People v. Udzinski, 146 A.D.2d 245). In any event, the admission of the challenged testimony did not constitute reversible error (see People v. Holt, 67 N.Y.2d 819; People v. Johnson, 57 N.Y.2d 969).
The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).
ALTMAN, J.P., McGINITY and TOWNES, JJ., concur.
To preserve a claim of error on the ground of improper bolstering (see People v. Buie, 86 N.Y.2d 501, 510; People v. McDaniel, 81 N.Y.2d 10, 16), the defendant must explicitly state that the basis of his objection is that the testimony constitutes improper bolstering (see People v. Love, 57 N.Y.2d 1023, 1025; People v. West, 56 N.Y.2d 662, 663). I agree with the majority that the defendant did not preserve for appellate review his contention that the admission of the complainant's prior consistent statements through the testimony of the complainant's daughter, the detective who interviewed the daughter, and the investigating detective, constituted improper bolstering. Defense counsel did not object to the testimony on this particular ground (see CPL 470.05; People v. West, supra at 663; People v. Anderson, 260 A.D.2d 387, 388; People v. Foster, 143 A.D.2d 767, 768). Nevertheless, I would reach this issue in the interest of justice based upon the overwhelming amount of hearsay testimony permitted at this trial (see CPL 470.15[a]).
While prior consistent statements are admissible as an exception to the hearsay rule to rehabilitate a witness whose testimony has been attacked as a recent fabrication (see People v. Buie, supra at 510; People v. McDaniel, supra at 18; People v. Singh, 276 A.D.2d 503), the prior consistent statements were elicited in this case by the prosecutor on direct examination of these witnesses. This inadmissible hearsay evidence served to bolster the complainant's latest version of how she suffered her chest wound. The complainant's prior version of the events did not inculpate the defendant. There was no rehabilitative purpose for eliciting these statements and, as such, they should have been excluded (see People v. Singh, supra).
Moreover, I cannot conclude that there is no significant probability that the jury would have acquitted the defendant had the errors not occurred (see People v. Johnson, 57 N.Y.2d 969, 970). Thus, the errors were not harmless (see People v. Baldelli, 152 A.D.2d 741, 742; cf. People v. Crimmins, 36 N.Y.2d 230; People v. Nicholson, 168 A.D.2d 574). Accordingly, though unpreserved by defense counsel's general objections at trial, I would reach the merits of the defendant's bolstering argument in the interest of justice, reverse the conviction, and order a new trial (see People v. Baldelli, supra at 742).