| People v Flowers |
| 2011 NY Slip Op 03104 [83 AD3d 524] |
| April 19, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marlon Flowers, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Richard D. Carruthers, J.), rendered May 11,2007, convicting defendant, after a jury trial, of assault in the first degree and criminal possessionof a weapon in the second and third degrees, and sentencing him, as a persistent felony offender,to concurrent terms of 20 years to life on each count, unanimously affirmed.
The court properly exercised its discretion in receiving police testimony that the victimnamed defendant as his assailant immediately after the crime. These prior consistent statementswere admissible to rebut a claim of recent fabrication. A major component of defendant's trialstrategy was to attack the victim's credibility by arguing that he was motivated to testify falselyby a cooperation agreement, entered into more than a year after the shooting, which required himto testify against defendant in exchange for a lenient sentence in his own drug case. The priorconsistent statements clearly predated that particular motive to falsify. Defendant's trial strategyalso included a theory that the victim had deliberately misidentified defendant at the outset of thecase, in order to avoid revealing that the shooting involved the victim's own drug trafficking.However, there is no requirement that, to be admissible, a prior consistent statement predate allpossible motives to falsify (see People v McClean, 69 NY2d 426, 430 [1987]; Peoplev Baker, 23 NY2d 307, 322-323 [1968]). We also note that the court's limiting instructionswere sufficient to prevent any undue prejudice. In any event, any error in receipt of this testimonywas harmless in view of the overwhelming evidence against defendant. Among other things,there were recorded conversations in which defendant not only displayed a consciousness of guiltbut virtually admitted the crime.
The court also properly exercised its discretion in receiving evidence that while the victimwas incarcerated on his own case, an unnamed inmate threatened him with harm if he testifiedagainst defendant. The jury could have reasonably inferred, from all the circumstances, that itwas unlikely that such a threat would have been made without defendant's instigation orauthorization (see People v Cotto, 222 AD2d 345, 345 [1995], lv denied 88NY2d 846 [1996]). The court provided appropriate limiting instructions. Any error was harmlessboth because the evidence of guilt was overwhelming, and because the testimony at issue wascumulative to other consciousness-of-guilt evidence that was much more damaging.[*2]
Defendant's challenge to the constitutionality of hissentencing as a persistent felony offender is unavailing (see People v Battles, 16 NY3d 54 [2010]; People v Quinones, 12 NY3d 116[2009]). Concur—Tom, J.P., Mazzarelli, Acosta, Renwick and Freedman, JJ.