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ALTHOUGH SECONDARY EVIDENCE (HEARSAY TESTIMONY) AND EXTRINSIC DOCUMENTARY EVIDENCE ARE NOT ADMISSIBLE FOR COLLATERAL MATTERS LIKE IMPEACHING CREDIBILITY, SUCH EVIDENCE IS ADMISSIBLE WHEN IT IS RELEVANT TO A CORE ISSUE; HERE THE CONTENTS OF A NOTE PRESENTED TO A BANK EMPLOYEE WAS RELEVANT TO THE ‘THREATENED USE OF FORCE ‘ ELEMENT OF ROBBERY (FOURTH DEPT).

The Fourth Department, reversing defendant’s robbery conviction and ordering a new trial on that count, determined the defendant should have been allowed to present a witness to demonstrate the note he presented to the bank employee did not threaten the use of force (an element of the robbery charge). The Fourth Department noted that secondary evidence (hearsay testimony) and extrinsic documentary evidence, which is prohibited for collateral issues, may be admissible when the evidence is relevant to a core issue:

“It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence or call other witnesses to contradict a witness’ answers concerning collateral matters solely for the purpose of impeaching that witness’ credibility” … . That rule, however, “has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the jury must decide” … . “Where the truth of the matter asserted in the proffered inconsistent statement is relevant to a core factual issue of a case, its relevancy is not restricted to the issue of credibility and its probative value is not dependent on the inconsistent statement. Under such circumstances, the right to present a defense may encompass[ ] the right to place before the [trier of fact] secondary forms of evidence, such as hearsay’ ” … . Here, defendant sought to call a witness whose testimony related to the content of the note defendant presented to the bank employee in the first incident. Defendant specifically sought to establish that the note he presented contained language that, according to defendant, did not threaten the immediate use of force, contrary to the testimony of the bank employee who received it. Although a threat of immediate use of force may be implicit and does not require the use of any specific words … , the use of threatening language is nevertheless a factor for the jury to consider when determining whether the defendant presented such a threat … . Inasmuch as the content of the note was relevant to whether defendant, either explicitly or implicitly, threatened the use of force, we conclude that the proposed testimony pertained to a noncollateral issue and that the court should have allowed the proposed witness to testify … . People v Snow, 2020 NY Slip Op 04024, Fourth Dept 7-17-20

 

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