People v. McPherson

Appellate Division of the Supreme Court of New York

People v. McPherson

198 A.D.2d 119, 603 N.Y.S.2d 828, 1993 N.Y. App. Div. LEXIS 10651

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

DecidedNovember 16, 1993

StatusPublished

Cited by2 cases

This text of 198 A.D.2d 119 (People v. McPherson) 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. McPherson, 198 A.D.2d 119, 603 N.Y.S.2d 828, 1993 N.Y. App. Div. LEXIS 10651 (N.Y. Ct. App. 1993).

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Opinion

—Judgment, Supreme Court, Bronx County (Vincent Vitale, J.), rendered December 6, 1991, convicting defendant, after a jury trial, of attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 10 to 20 years on each of the attempted murder counts, and 3 to 6 years on the weapon possession count, unanimously affirmed.

Defendant consented to admission of a document indicating [120]*120a prior consistent statement, and thus may not properly seek interest of justice review of such an " 'invited error’ ” (People v Acosta, 180 AD2d 505, 509-510, lv denied 80 NY2d 827). Additionally, as defendant vigorously cross-examined the witness regarding his mistake in transcription, pointedly suggesting that the mistake was recently brought to the witness’ attention by the prosecutor, admission of the document indicating the prior consistent statement on redirect examination was appropriate to rehabilitate the witness’ testimony following defendant’s "at least implicit assertions of recent fabrication” (People v Boyd, 58 NY2d 1016, 1018).

Defendant’s claim of "bad faith” on the part of the prosecutor in questioning the police officer who conducted the lineup is unsupported by the record. Additionally, any bolstering of one identification witness’ testimony that may have been created by the officer’s testimony was effectively rendered harmless by the trial court’s prompt curative actions and the strong identification testimony in this case, making it unlikely that the jury would substitute the officer’s testimony for that of the identification witness in question (People v Nunez, 162 AD2d 298, lv denied 76 NY2d 862).

We have considered defendant’s additional claims of error and find them to be either unpreserved or without merit. Concur — Sullivan, J. P., Ross, Kassal, Rubin and Nardelli, JJ.

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—Judgment, Supreme Court, Bronx County (Vincent Vitale, J.), rendered December 6, 1991, convicting defendant, after a jury trial, of attempted murder in the second degree (two counts), and criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 10 to 20 years on each of the attempted murder counts, and 3 to 6 years on the weapon possession count, unanimously affirmed.

Defendant consented to admission of a document indicating [120]*120a prior consistent statement, and thus may not properly seek interest of justice review of such an " 'invited error’ ” (People v Acosta, 180 AD2d 505, 509-510, lv denied 80 NY2d 827). Additionally, as defendant vigorously cross-examined the witness regarding his mistake in transcription, pointedly suggesting that the mistake was recently brought to the witness’ attention by the prosecutor, admission of the document indicating the prior consistent statement on redirect examination was appropriate to rehabilitate the witness’ testimony following defendant’s "at least implicit assertions of recent fabrication” (People v Boyd, 58 NY2d 1016, 1018).

Defendant’s claim of "bad faith” on the part of the prosecutor in questioning the police officer who conducted the lineup is unsupported by the record. Additionally, any bolstering of one identification witness’ testimony that may have been created by the officer’s testimony was effectively rendered harmless by the trial court’s prompt curative actions and the strong identification testimony in this case, making it unlikely that the jury would substitute the officer’s testimony for that of the identification witness in question (People v Nunez, 162 AD2d 298, lv denied 76 NY2d 862).

We have considered defendant’s additional claims of error and find them to be either unpreserved or without merit. Concur — Sullivan, J. P., Ross, Kassal, Rubin and Nardelli, JJ.

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Bluebook (online)

198 A.D.2d 119, 603 N.Y.S.2d 828, 1993 N.Y. App. Div. LEXIS 10651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcpherson-nyappdiv-1993.

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