People v. Hart
| Decision Date | 17 September 1991 |
| Citation | 574 N.Y.S.2d 33,176 A.D.2d 148 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Kermit HART, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and MILONAS, ROSS, ASCH and SMITH, JJ.
Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered November 2, 1989, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him, as a predicate felon, to a term of imprisonment of from 6 to 12 years, unanimously affirmed.
We find no merit to defendant's argument that he was denied a fair trial when the trial court allowed the complaining witness to testify on redirect examination as to a prior consistent statement he made before the Grand Jury to the effect that he turned around and saw defendant holding a knife after defendant demanded his money. While it is true that the defense did not assail the witness' trial testimony as a recent fabrication (People v. McClean, 69 N.Y.2d 426, 515 N.Y.S.2d 428, 508 N.E.2d 140), it remains that the Grand Jury testimony was not actually read to the jury, but simply recounted by the witness in response to a question as to whether he recalled telling the Grand Jury that he was facing the defendant during the course of the robbery. After being shown a portion of the Grand Jury minutes, the witness testified that his recollection was refreshed, and proceeded to describe how he told the Grand Jury that he had turned around and faced defendant after defendant demanded his money. This was proper since defense counsel, on cross examination after showing the witness a different portion of the minutes, elicited from the witness that he did not remember telling the Grand Jury that he had turned around and faced defendant. This might have left the jury with the impression that the witness had omitted a significant fact from his Grand Jury testimony, an impression which could only have weakened his credibility. In this way, defense counsel had "opened the door" concerning the witness' recollection of his Grand Jury testimony (People v. Torre, 42 N.Y.2d 1036, 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759; see generally, People v. Melendez, 55 N.Y.2d 445, 451-52, 449 N.Y.S.2d 946, 434 N.E.2d 1324). The redirect examination related directly to the subject matter of the cross examination, with the witness doing nothing more on redirect than answering the very question that he was unable to answer on...
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