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ALLOWING THE INTRODUCTION OF A WITNESS’S GRAND JURY TESTIMONY AS A PRIOR CONSISTENT STATEMENT WAS (HARMLESS) ERROR (THIRD DEPT).

The Third Department determined it was (harmless) error to allow the People to introduce a witness’s grand jury testimony as a prior consistent statement to counter the implication of recent fabrication raised on cross-examination:

“A witness'[s] trial testimony ordinarily may not be bolstered with pretrial statements” … . Prior consistent statements, however, may be used to rebut a claim of recent fabrication to the extent that such a statement predated the motive to falsify … . …

… [W]e conclude that Supreme Court erred in allowing the People to utilize her grand jury testimony. That said, given that the admission of bolstering testimony constitutes nonconstitutional error … , we find that the error is harmless and there is not a significant probability that the jury would have acquitted defendant but for this error … . The inconsistency speaks to which direction the shooter dispersed during what was described as a chaotic scene, not to the key issue of identification. As recited above, four witnesses identified defendant as the shooter. As such, we find that the error here is of no moment. People v Johnson, 2019 NY Slip Op 07646, Third Dept 10-24-19

 

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