People v. Odome

• Decision Date: 26 April 1993
• Citation: 192 A.D.2d 726,596 N.Y.S.2d 853
• Parties: The PEOPLE, etc., Respondent, v. Eric ODOME, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 853

596 N.Y.S.2d 853

192 A.D.2d 726

The PEOPLE, etc., Respondent, v. Eric ODOME, Appellant.

Supreme Court, Appellate Division, Second Department.

April 26, 1993.

Frank S. Polestino, Jamaica (Christine Scaccia and Joseph Cartolano on the brief), for appellant.

Charles J. Hynes, Dist. Atty., Brooklyn (Roseann B. MacKechnie, Ann Bordley, and Jay L. Weiner, of counsel), for respondent.

Before BRACKEN, J.P., and RITTER, COPERTINO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Pincus, J.), rendered February 25, 1988, convicting him of murder in the second degree and attempted robbery in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that the trial court erred in permitting the prosecutor to elicit prior consistent statements from an eyewitness. It is well established that a witness's prior consistent statements may not be utilized to bolster his or her trial testimony unless the testimony has been attacked by the opposing party as a recent fabrication (see, People v. Marcial, 178 A.D.2d 493, 577 N.Y.S.2d 316; People v. Davis, 44 N.Y.2d 269, 405 N.Y.S.2d 428, 376 N.E.2d 901). In this case, there was no such attack. Thus, it was error to allow the witness to testify that he told the District Attorney and Grand Jury that the defendant shot the victim. It was also error to allow a police officer to testify that he arrested the defendant after conferring with the eyewitness (see, People v. Holt, 67 N.Y.2d 819, 501 N.Y.S.2d 641, 492 N.E.2d 769). However, any error in the admission of such bolstering testimony must be deemed harmless in light of the eyewitness's recognition of the defendant, whom he had known for 20 years (see, People v. Tinsley, 159 A.D.2d 602, 552 N.Y.S.2d 461).

The defendant's contention that the trial court's supplemental instructions were coercive and prejudicial to the defense are without merit. To the extent this issue was preserved for appellate review, we find that the instructions were neutral, were directed to the jurors in general, and were not coercive (see, People v. Brooks, 152 A.D.2d 591, 543 N.Y.S.2d 704; People v. Jones, 166 A.D.2d 722, 561 N.Y.S.2d 475).

The defendant's remaining contentions are either unpreserved for appellate review or without merit.