| People v Woods |
| 2011 NY Slip Op 00404 [80 AD3d 718] |
| January 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LeeWoods, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lott, J., at trial;Gerges, J., at sentencing), rendered April 1, 2009, convicting him of aggravated murder, attemptedaggravated murder, and criminal possession of a weapon in the second degree (two counts), upon ajury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
"If upon cross-examination a witness' testimony is assailed—either directly orinferentially—as a recent fabrication, the witness may be rehabilitated with prior consistentstatements that predated the motive to falsify" (People v McDaniel, 81 NY2d 10, 18 [1993]).During cross-examination, defense counsel implied that the prosecution witness's testimony was arecent fabrication because she had received certain benefits from the police. By doing so, defensecounsel opened the door for the prosecution to rehabilitate the witness's credibility with a priorconsistent statement that predated the motive to fabricate (id. at 18; see People v SingYuen Chen, 253 AD2d 898, 899 [1998]). The prior consistent statement did not need to predateall motives to fabricate (see People v Baker, 23 NY2d 307, 322-323 [1968]; People vJones, 289 AD2d 47, 47-48 [2001]; People v Kanani, 272 AD2d 186, 187 [2000]).Accordingly, the Supreme Court correctly admitted the witness's prior consistent statement.
Any error in instructing the jury on the presumption contained in Penal Law § 265.15 (3)was harmless, as there was overwhelming evidence of the defendant's guilt, and no significantprobability that the error contributed to his convictions (see People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Mace, 91 AD2d 864 [1982]; cf. People v Williams, 146AD2d 659, 660-661 [1989]).
The defendant's challenge to the Supreme Court's supplemental instructions on the counts chargingcriminal possession of a weapon in the second degree is unpreserved for appellate review, and wedecline to review it in the exercise of our interest of justice jurisdiction (see People v Harrison,194 AD2d 627 [1993]).[*2]
The defendant's remaining contention is without merit. Dillon,J.P., Balkin, Leventhal and Chambers, JJ., concur.