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New York Supreme Court Affirms Witness Testimony Was Correctly Admitted as Past Recollection Recorded


(People v T, NY Slip Op 02442)

The issue addressed here is whether a part of witness testimony was properly admitted as past recollection recorded, to supplement trial testimony. This court held that the trial court made a proper determination in admitting grand jury testimony, as part of past recollection recorded, which was the proper foundation receipt of evidence. Additionally,  because the statement was made out of court and the witness was at the trial, the 6th Amendment right to confrontation wasn’t violated.

Sargeant CB testified that he was driving Lieutenant C to the police station at 3:30 am when he witnessed the defendant body slam the defendant and drag him between 2 parked cars. Lieutenant C separated the men, and the other Officer B, pursued the man that was running away.

CB testified that he noted the victim was bleeding profusely in the face and neck area. The defendant and the other party were arrested. Officer B noted a shattered bottle on the ground where the altercation had occurred.

The victim testified that at trial he was attacked from behind, and identified the defendant as one of the assailants. The ER doctor testified that the victim had 5 lacerations on his face that were consistent with being struck by a sharp object. The lacerations on his neck were considered potentially life-threatening.

During the trial, defense counsel notified the court that she would be seeking a missing witness charge if CB wasn’t called as a witness.

People called CB as a witness, but he couldn’t recall the incident. The people sought to have his primary grand jury testimony admitted as past recollection recorded. The defense objected stating that CB couldn’t be cross-examined because of his lack of memory and admitting prior grand jury testimony would violate the defendant’s 6th Amendment Right to Confrontation.

The court found that the witness is subject to cross-exam by being on the witness stand under oath and passed to defense as a witness. The court held that if the People established the correct foundation, the prior grand jury testimony could be allowed as past recollection recorded because CB was in attendance.

CB was called to the stand and gave his account of the events. The People sought to introduce his prior grand jury testimony. Because the evidentiary foundation was established, the court allowed CB’s testimony to be read into the record.

The next day with the close of evidence, the defense moved to strike CB’s grand jury testimony. People said it was untimely. The court held that the defense’s argument was untimely and waived.

The jury acquitted the defendant of the assault charge, but he was found guilty of attempted assault in the 1st degree.

Appellate Court affirmed, stating that it was a proper decision to admit CB’s testimony as past recollection recorded [151 AD3d 437, 439 [1st Department 2017]. The court felt that the People had laid the proper foundation and the evidence was legally sufficient to support his conviction. The Appellate Court affirms.

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