People v. Davis

• Decision Date: 31 March 1983
• Citation: People v. Davis, 462 N.Y.S.2d 816, 58 N.Y.2d 1102, 449 N.E.2d 710 (N.Y. 1983)
• Parties: , 449 N.E.2d 710 The PEOPLE of the State of New York, Appellant, v. Calvin DAVIS, Also Known as Kevin Dunn, Respondent. The PEOPLE of the State of New York, Appellant, v. Benjamin JOHNSON, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 816

462 N.Y.S.2d 816

58 N.Y.2d 1102, 449 N.E.2d 710

The PEOPLE of the State of New York, Appellant, v. Calvin DAVIS, Also Known as Kevin Dunn, Respondent.

The PEOPLE of the State of New York, Appellant, v. Benjamin JOHNSON, Respondent.

Court of Appeals of New York.

March 31, 1983.

Mario Merola, Dist. Atty., Brooklyn (Robin Dolsky, New York City, and Steven R. Kartagener, Brooklyn, of counsel), for appellant.

Barry D. Leiwant and William E. Hellerstein, New York City, for Calvin Davis, respondent.

Ronald D. Degen, New York City, for Benjamin Johnson, respondent.

OPINION OF THE COURT MEMORANDUM.

The orders of the Appellate Division, 86 A.D.2d 542, 446 N.Y.S.2d 542, should be affirmed.

Testimony offered not for the truth of its content but to evidence the fact that the statement was made is not hearsay. Key to the defense offered by defendants was that the victim's wife had shot him when, during a struggle with defendants, the victim had called out to her to "Shoot the bastards." That defendants' version of the events strained credulity does not render the error harmless for credibility is a jury function and there were inconsistencies in and, therefore, problems with the testimony of the victim's wife as well. The prosecution having been permitted to present through the wife its version of what the victim said and having argued to the jury that the wife would...