You are here: / / WHERE A WITNESS STATES SHE DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY...
,

WHERE A WITNESS STATES SHE DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT.

The Third Department determined County Court properly denied defense counsel’s request to enter the victim’s statement in evidence as a prior inconsistent statement. The court explained that, where a witness states she does not recall making a statement, it is necessary to call a witness who was present when the statement was made to lay a proper foundation for admission. The court also noted that the statement was not so inconsistent with the witness’ testimony as to warrant its use in cross-examination. With respect to the foundation for the evidence, the court wrote:

 

“It is well established that a witness’ prior inconsistent statements may be used to impeach his [or her] trial testimony [a]nd the test of inconsistency . . . is not limited to outright contradictions between a witness’ prior statements and his [or her] trial testimony” … . However, before a witness may be impeached with such a statement, a proper foundation must be laid … , and, “[i]f the witness denies that the statement was made or does not remember making it, he or she may be impeached by the testimony of others who heard the statement” … .

Here, while cross-examining the victim at trial, defense counsel questioned her about the statement that she gave to State Trooper Joseph Smith several hours after the attack occurred. Specifically, counsel asked the victim if she remembered giving a statement to Smith, to which she said, “I don’t recall. I don’t remember a lot.” Counsel then asked, “You don’t remember giving a statement?” to which the victim answered, “I remember giving a statement, yes, I do, but everything was jumbled.” Counsel then asked if the victim remembered telling Smith that she was sleeping on the couch just before the altercation. The victim denied making such statement and explained that she told Smith that she was lying on the couch trying to go to sleep. After being shown the statement by counsel, the victim confirmed that it was, in fact, the statement she vaguely recalled being read to her by Smith and that she had signed. Defendant then unsuccessfully attempted to offer the victim’s statement into evidence. County Court sustained the People’s hearsay objection, noting that Smith was available to be called as a witness and questioned with regard to the victim’s statement. Inasmuch as defendant failed to lay a proper foundation for admission of this hearsay evidence, we find no abuse of discretion in County Court’s ruling. People v Maxam, 2016 NY Slip Op 00391, 3rd Dept 1-21-16

 

CRIMINAL LAW (WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/EVIDENCE (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT)/PRIOR INCONSISTENT STATEMENT (CRIMINAL LAW, WHERE WITNESS DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION)

You might also like
Slander Per Se Complaint Not Based Upon “Serious Crime” (Trespass) ​
DISMISSAL OF A CLAIM BASED UPON THE PRECLUSION OF AN INDEPENDENT MEDICAL EXAMINATION (IME) REPORT DID NOT CONSTITUTE LITIGATION OF THE CLAIM; CLAIMANT WAS ENTITLED TO CONSIDERATION OF THE CLAIM BASED UPON A NEW IME REPORT (THIRD DEPT).
THE AWARD OF PREJUDGMENT INTEREST IN A BREACH OF CONTRACT ACTION IS REQUIRED BY CPLR 5001; THE REQUEST FOR PREJUDGMENT INTEREST SHOULD NOT HAVE BEEN DENIED BASED ON A FIVE-YEAR DELAY IN BRINGING SUIT (THIRD DEPT).
Object’s Fall of 1 ½ Feet Constituted Physically Significant Elevation Differential for Purposes of Requiring a Safety Device Pursuant to Labor Law 240 (1)
Waiver of Appeal Invalid—Failure to Afford Defendant His Right to Counsel Prior To and During Grand Jury Proceedings Required Dismissal of the Indictment—“Guilty-Plea” Forfeiture Rule Did Not Apply
WHEN THE MERITS OF A MOTION TO REARGUE ARE ADDRESSED THE DENIAL IS APPEALABLE; THE PERSONAL SERVICE REQUIREMENTS FOR THE NOTICE OF SALE PURSUANT TO THE LIEN LAW WERE NOT MET, THEREFORE THE 10-DAY PERIOD FOR BRINGING A SPECIAL PROCEEDING TO CONTEST THE VALIDITY OF THE LIEN DID NOT START TO RUN (THIRD DEPT).
Engineer/Engineering Firm Did Not Have Standing to Contest Variance
AN AMENDMENT TO THE PUBLIC SERVICE LAW REQUIRES UTILITY COMPANIES TO COMPENSATE CUSTOMERS FOR STORM-OUTAGE-RELATED LOSSES WHERE THE OUTAGE IS FOR 72 HOURS OR MORE AND PROHIBITS UTILITIES FROM RECOVERING THOSE COSTS FROM RATEPAYERS (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE PEOPLE’S STATEMENTS OF READINESS FOR TRIAL WERE DEEMED ILLUSORY; CASE... EVIDENCE OF AN UNRELATED DRUG SALE WAS NOT ADMISSIBLE TO SHOW DEFENDANT’S...