People v. Shannon, 2013-11109

• Decision Date: 18 December 2019
• Docket Number: 2013-11109,Ind. No. 1167/10
• Parties: The PEOPLE, etc., respondent, v. Allen SHANNON, appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 960
116 N.Y.S.3d 373

The PEOPLE, etc., respondent,
v.
Allen SHANNON, appellant.

2013-11109
Ind. No. 1167/10

Supreme Court, Appellate Division, Second Department, New York.

Argued - September 27, 2019
December 18, 2019

Paul Skip Laisure, New York, N.Y. (A. Alexander Donn of counsel), for appellant, and appellant pro se.

John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, JOHN M. LEVENTHAL, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

178 A.D.3d 961

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).

We agree with the defendant's

178 A.D.3d 962

contention that the Supreme Court should not have allowed a witness to testify as to the statements she made to the police regarding the substance of her communication with the defendant. The admission into evidence of this prior consistent statement impermissibly bolstered the witness's earlier account of the substance of her communication with the defendant, because

116 N.Y.S.3d 376

there had been no impeachment of the witness with the statement and no charge had been made of a recent fabrication (see People v. Cheek, 163 A.D.2d 580, 558 N.Y.S.2d 633 ; People v. Dillard, 117 A.D.2d 817, 499 N.Y.S.2d 137 ). However, the admission of this statement was harmless error, as there was overwhelming evidence of the defendant's guilt and no significant probability that the jury would have acquitted the defendant if the testimony had been excluded (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787 ).

We agree with the Supreme Court's determination to allow a witness to testify to the substance of a particular statement used to refresh her recollection. The statement was not admitted into evidence; rather, the witness gave her oral version of the events after her memory was refreshed (see People v. Abair, 134 A.D.2d 743, 521 N.Y.S.2d 560 ; People v. Tyrrell, 101 A.D.2d 946, 475 N.Y.S.2d 937 ; People v. Raja, 77 A.D.2d 322, 433 N.Y.S.2d 200 ).

The defendant failed to preserve for appellate review his contention that the Supreme Court should have charged...