People v. Lamour

• Decision Date: 19 January 1993
• Citation: 189 A.D.2d 825,592 N.Y.S.2d 451
• Parties: The PEOPLE, etc., Respondent, v. Pierrot LAMOUR, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 451

592 N.Y.S.2d 451

189 A.D.2d 825

The PEOPLE, etc., Respondent, v. Pierrot LAMOUR, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 19, 1993.

Philip L. Weinstein, New York City (Kannan Sundaram, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Daniel J. O'Reilly, Gary Fidel, Robert J. Hanophy, Jr., and Pam Lynam, of counsel), for respondent.

Before THOMPSON, J.P., and BALLETTA, RITTER and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.) rendered February 27, 1990, convicting him of attempted rape in the first degree, sexual abuse in the first degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

During the course of the trial, the victim testified that she had struck her assailant in the head with a portable radio, drawing blood. The defendant, who testified on his own behalf, claimed that he had sustained a cut on his forehead when he was struck by an opening door. The defendant also denied ever telling anyone that he had sustained the injury by falling down. The People's rebuttal witness, a police officer, testified that on the date of the arrest, the defendant stated that he had received the cut as the result of a fall.

The defendant contends that he was denied a fair trial by the admission of the rebuttal testimony because the statement attributed to the defendant had not been previously disclosed as required by CPL 240.20(1)(a). However, the record does not reveal that the prosecutor was aware of the challenged statement at the time of the defendant's discovery demand or that he learned of the statement at any time subsequent to the original demand but prior to the trial (see, CPL 240.20[2]. Furthermore, the record indicates that the People had no intention of eliciting the challenged statement as part of their case-in-chief, and decided to do so only after the defendant had offered an alternative explanation for his head wound and had denied ever telling the police officer that he had sustained the injury by falling. Under these circumstances, it was proper for the People to call the officer to whom the statement was made as a rebuttal witness (see, People v. Foster, 182 A.D.2d 701, 582 N.Y.S.2d 734; People v. Connor, 157 A.D.2d 739, 550 N.Y.S.2d 34). The challenged statement was not collateral, but, instead, was directly relevant to the complainant's identification of the defendant as her assailant (see, People v. Wise, 46 N.Y.2d 321, 413 N.Y.S.2d 334, 385 N.E.2d 1262; People v. Knight, 173 A.D.2d 736, 737, 570 N.Y.S.2d 617, affd. 80 N.Y.2d 845, 587 N.Y.S.2d 588, 600 N.E.2d 219; People v. Beavers, 127 A.D.2d 138, 141, 514 N.Y.S.2d 235). Therefore, the rebuttal testimony was properly admitted for impeachment purposes.

The defendant also contends that he was denied due process of law because he was not present at the Sandoval hearing (see, People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413) conducted in chambers. While a criminal "defendant has a fundamental right to be present at all material stages of [the] trial" (People v. Mehmedi, 69 N.Y.2d 759, 670, 513 N.Y.S.2d 100, 505 N.E.2d 610; People v. Williams, 186...