| People v Bournes |
| 2009 NY Slip Op 01657 [60 AD3d 687] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 61—The People of the State of New York,Respondent, v Lloyd Bournes, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and ShulamitRosenblum Nemec of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marrus, J.),rendered June 20, 2006, convicting him of rape in the first degree and rape in the second degree,upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of rape in thefirst degree and the sentence imposed thereon; as so modified, the judgment is affirmed, and anew trial is ordered on count one of the indictment charging rape in the first degree.
Following a pretrial hearing, the Supreme Court denied the defendant's motion to suppressstatements he had made to the police. While the prosecution did not use the defendant'sstatements on its case in chief, a police detective testified during redirect examination that thedefendant had admitted that he "forcibly raped and sodomized the victim." Although thedefendant had never confessed to the commission of a forcible offense, the trial prosecutor failedto correct the inaccurate testimony, a failure which the prosecution now properly concedes waserror (see People v Steadman, 82 NY2d 1, 7-8 [1993]; People v Jones, 31 AD3d 666,667 [2006]; People v Schwartz, 240 AD2d 600 [1997]). The failure to correct false ormistaken material testimony of a prosecution witness violates the defendant's constitutional rightto due process and requires reversal and remittitur for a new trial unless the error can be deemedharmless (see People v Steadman, 82 NY2d at 8-9; People v Jones, 31 AD3d at667). As the prosecution further correctly concedes, the error cannot be deemed harmless withregard to the defendant's conviction of rape in the first degree in this case, and that convictionmust be vacated. However, the error in failing to correct the improper testimony was harmlessbeyond a reasonable doubt with regard to the defendant's conviction of rape in the seconddegree. The evidence of the defendant's guilt of that offense, without reference to the impropertestimony, was overwhelming, and there was no reasonable possibility that the error might havecontributed to his conviction (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Rush, 44 AD3d 799, 800[2007]).[*2]
Upon vacating the conviction of rape in the first degree,the appropriate remedy is a new trial on that count of the indictment. Contrary to the defendant'scontention, viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620, 621 [1983]), and disregarding the improper testimony, we find thatthe evidence was legally sufficient to establish the defendant's guilt of that offense beyond areasonable doubt (see People v Shelton, 307 AD2d 370 [2003], affd 1 NY3d 614[2004]; People v Sehn, 295 AD2d 749 [2002]; People v Ayala, 236 AD2d 802,803 [1997]; People v Perkins, 189 AD2d 830 [1993]). We note in this regard that thePeople concede that the defendant's statements to law enforcement officials should not beintroduced at the new trial for any purpose, including impeachment.
In view of the foregoing, the defendant's remaining contentions have been renderedacademic. Mastro, J.P., Covello, Dickerson and Leventhal, JJ., concur.