People v. Yarbough

• Decision Date: 29 July 1996
• Citation: 646 N.Y.S.2d 353,229 A.D.2d 605
• Parties: The PEOPLE, etc., Respondent, v. Anthony YARBOUGH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 353

646 N.Y.S.2d 353

229 A.D.2d 605

The PEOPLE, etc., Respondent, v. Anthony YARBOUGH, Appellant.

Supreme Court, Appellate Division Second Department.

July 29, 1996.

Daniel L. Greenberg, New York City (Joseph A. Zayas, of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and Jane S. Meyers, of counsel), for respondent.

Before MILLER, J.P., and O'BRIEN, GOLDSTEIN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered March 15, 1994, convicting him of murder in the second degree (three counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was convicted of three counts of murder in the second degree for killing his mother, sister, and his sister's friend. Prior to his trial, the codefendant, Sharif Wilson, was convicted of three counts of murder in the second degree for his participation in the crimes and faced a lengthy sentence. Wilson testified against the defendant after the People promised him a significant reduction in his sentence. The defendant contends that the court erred in permitting the People to introduce the codefendant's videotaped confession, in which he implicated the defendant, as a prior consistent statement. We disagree since the defense counsel's cross-examination of the codefendant suggested that he was motivated to testify falsely against the defendant by the recent promise of a reduced sentence (see, People v. McClean, 69 N.Y.2d 426, 515 N.Y.S.2d 428, 508 N.E.2d 140; see also, People v. McDaniel, 81 N.Y.2d 10, 595 N.Y.S.2d 364, 611 N.E.2d 265; People v. Baker, 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232).

During the trial, the defense counsel cross-examined a prosecution witness about the defendant's reputation in the community and elicited, inter alia, that he had a reputation for peacefulness. The court held a conference in chambers in which it ruled that the defense counsel had opened the door to questioning by the People regarding this witness's knowledge of prior bad acts by the defendant and requested an offer of proof from the prosecutor. The defendant contends that his absence from this conference violated his right to be present at a material stage of the trial and requires a reversal of his conviction. The record does not indicate whether, in fact, the defendant was absent from this conference. In any event, we conclude that the defendant's contention is without merit.

Whether the defense counsel opened the door to cross-examination of this witness regarding particular incidents involving the defendant was a purely legal issue, and the defendant's presence was not required (see, People v. Dickerson, 87 N.Y.2d 914, 640 N.Y.S.2d 865, 663 N.E.2d 906; People v. Rodriguez, 85 N.Y.2d 586, 627 N.Y.S.2d 292, 650 N.E.2d 1293). Under the circumstances of this case, the defendant's presence at the balance of the conference, when the prosecutor made her offer of proof, was not required as his presence "would [have been] useless, or the benefit but a shadow"...