People v. Button

Appellate Division of the Supreme Court of New York

People v. Button

216 A.D.2d 903, 629 N.Y.S.2d 137, 1995 N.Y. App. Div. LEXIS 7227

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 9, 1995

StatusPublished

This text of 216 A.D.2d 903 (People v. Button) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Button, 216 A.D.2d 903, 629 N.Y.S.2d 137, 1995 N.Y. App. Div. LEXIS 7227 (N.Y. Ct. App. 1995).

Pincite

Opinion

Judgment unanimously affirmed. Memorandum: Defendant was charged with assaulting his girlfriend. Originally, the victim told the police that defendant had kicked and punched her, smashed her head into a wall and struck her in the face with his rifle, breaking her jaw. Approximately one week later, the victim recanted her first statement and told the police that her injuries had been sustained accidentally; she requested that the charges against defendant be dropped. At trial, County Court granted the People’s request that the victim be declared a hostile witness. Defendant was convicted of assault in the second degree (Penal Law § 120.05 [2]), assault in the third [904]*904degree (Penal Law § 120.00 [1]) and menacing in the third degree (Penal Law § 120.15).

The court did not err in precluding defense counsel from attempting to question the victim about her second statement to show that it was consistent with her testimony at trial. Because defendant failed to demonstrate that the statement was made before the victim had a motive to falsify, testimony concerning her prior consistent statement was not admissible to rehabilitate her (see, People v McDaniel, 81 NY2d 10, 18-20; People v Davis, 44 NY2d 269, 277-278). Further, because the victim had already testified to the substance of the second statement, the error, if any, in precluding further testimony concerning the statement is harmless (see, People v Crimmins, 36 NY2d 230, 241-242).

Defendant’s conviction is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).

Defendant’s further contentions are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Ontario County Court, Henry, Jr., J.—Assault, 2nd Degree.) Present—Pine, J. P., Lawton, Wesley, Callahan and Boehm, JJ.

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Judgment unanimously affirmed. Memorandum: Defendant was charged with assaulting his girlfriend. Originally, the victim told the police that defendant had kicked and punched her, smashed her head into a wall and struck her in the face with his rifle, breaking her jaw. Approximately one week later, the victim recanted her first statement and told the police that her injuries had been sustained accidentally; she requested that the charges against defendant be dropped. At trial, County Court granted the People’s request that the victim be declared a hostile witness. Defendant was convicted of assault in the second degree (Penal Law § 120.05 [2]), assault in the third [904]*904degree (Penal Law § 120.00 [1]) and menacing in the third degree (Penal Law § 120.15).

The court did not err in precluding defense counsel from attempting to question the victim about her second statement to show that it was consistent with her testimony at trial. Because defendant failed to demonstrate that the statement was made before the victim had a motive to falsify, testimony concerning her prior consistent statement was not admissible to rehabilitate her (see, People v McDaniel, 81 NY2d 10, 18-20; People v Davis, 44 NY2d 269, 277-278). Further, because the victim had already testified to the substance of the second statement, the error, if any, in precluding further testimony concerning the statement is harmless (see, People v Crimmins, 36 NY2d 230, 241-242).

Defendant’s conviction is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).

Defendant’s further contentions are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Ontario County Court, Henry, Jr., J.—Assault, 2nd Degree.) Present—Pine, J. P., Lawton, Wesley, Callahan and Boehm, JJ.

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Bluebook (online)

216 A.D.2d 903, 629 N.Y.S.2d 137, 1995 N.Y. App. Div. LEXIS 7227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-button-nyappdiv-1995.

Opinion

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