People v. Violante
| Decision Date | 15 November 1988 |
| Citation | 534 N.Y.S.2d 281,144 A.D.2d 995 |
| Parties | PEOPLE of the State of New York, Respondent, v. Robert VIOLANTE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Norman Palmiere, Rochester, for appellant.
Howard R. Relin, Wendy Lehmann, Rochester, for respondent.
Before CALLAHAN, J.P., and DOERR, GREEN, PINE and DAVIS, JJ.
Defendant appeals from a judgment convicting him, after a jury trial, of intentional murder (Penal Law § 125.25[1] ). Defendant, together with Gino Cobos and Thomas Cenzi, was charged with intentional murder, felony murder, robbery and assault for severely beating and robbing James Amico in Sebastian Park in the City of Rochester. The men later returned and dumped the victim into the Barge Canal causing him to drown. The People's main witness was Louis Destino, whom the trial court found to be an accomplice, as a matter of law, on all charges except intentional murder. Defendant's claim that the court's charge to the jury on the definition of an accomplice was erroneous is the same issue raised and determined in a prior appeal by the codefendant Cobos. This Court's decision affirming Cobos' conviction fully resolved this issue (see People v. Cobos, 85 A.D.2d 893, 446 N.Y.S.2d 749, affd. 57 N.Y.2d 798, 455 N.Y.S.2d 588, 441 N.E.2d 1106).
Defendant raises a number of additional issues. He contends that the court erred in permitting the prosecution to bolster their case by offering into evidence the prior consistent statement of Louis Destino. As a general rule, an impeached witness cannot be rehabilitated by his prior consistent statements except to rebut a claim of recent fabrication (People v. Davis, 44 N.Y.2d 269, 277, 405 N.Y.S.2d 428, 376 N.E.2d 901; Crawford v. Nilan, 289 N.Y. 444, 46 N.E.2d 512). Here, however, where the accomplice Destino was extensively cross-examined about a number of prior inconsistent statements he made to the police, the People were entitled, on redirect examination, to rehabilitate their witness by showing that his trial testimony was consistent with a version of the facts he had previously given to the police (see People v. Baker, 23 N.Y.2d 307, 323, 296 N.Y.S.2d 745, 244 N.E.2d 232).
The court did not abuse its discretion in allowing the prosecutor, on redirect examination, to elicit testimony about defendant's offer of "hush money" to Destino. Evidence that a defendant attempted to procure false testimony or to corrupt a witness is generally admissible as evidence of consciousness of guilt (see People v. Davis, 43 N.Y.2d 17, 26, 400 N.Y.S.2d 735 371 N.E.2d 456, cert. denied 435 U.S. 998, 98 S.Ct. 1653, 56 L.Ed.2d 88). The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court (People v. Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324). Where the opposing party "opens the door" on cross-examination to matters not raised during the direct examination, a party has a right on redirect "to explain, clarify and fully elicit [the] question only partially examined" on cross-examination (People v. Melendez, supra, p. 451, 449 N.Y.S.2d 946, 434 N.E.2d 1324).
At trial defendant objected to the receipt of the autopsy report on the grounds that Dr. Evelyn Lewis, who prepared the report was available to testify. The autopsy report is a public record which is admissible into evidence in a criminal trial without offending the hearsay rule or defendant's right of confrontation (People v. Nisonoff, 267 App.Div. 356, 45 N.Y.S.2d 854, affd. 293 N.Y. 597, 59 N.E.2d 420; People v. Hampton, 38 A.D.2d 772, 773, 327 N.Y.S.2d 961; see also, CPLR 4518, CPL 60.10). However, while the autopsy findings are admissible to establish the primary facts stated therein, opinions as to the cause of death contained in such report are not admissible (People v. Nisonoff, supra; People...
To continue reading
Request your trial
-
Wright v. Duncan
...facts stated therein, opinions as to the cause of death contained in such report are not admissible.” People v. Violante, 144 A.D.2d 995, 534 N.Y.S.2d 281, 283 (4th Dep't 1988) ; see also People v. Hampton, 38 A.D.2d 772, 327 N.Y.S.2d 961, 962 (3d Dep't 1972) (“An autopsy report is ... a pu......
-
Tucker v. Bennett
...such conclusions should be redacted from autopsy reports. See United States v. Rosa, 11 F.3d at 333; People v. Violante, 144 A.D.2d 995, 996, 534 N.Y.S.2d 281 (4th Dep't 1988) (same). Tucker did not request any such redaction in his case. To the extent the trial court's failure sua sponte t......
-
People v. Jackson
...to procure false testimony or to corrupt a witness is generally admissible as evidence of consciousness of guilt” ( People v. Violante, 144 A.D.2d 995, 996, 534 N.Y.S.2d 281, lv. denied 73 N.Y.2d 897, 538 N.Y.S.2d 810, 535 N.E.2d 1350, citing People v. Davis, 43 N.Y.2d 17, 26, 400 N.Y.S.2d ......
-
Rucigay v. Wyckoff Heights Med. Ctr.
...the primary facts stated therein, opinions as to the cause of death contained in such report are not admissible" ( People v. Violante, 144 A.D.2d 995, 996, 534 N.Y.S.2d 281 ). At trial, the plaintiffs argued that the documents were admissible to establish the decedent's cause of death. The ......