| People v Lyons |
| 2013 NY Slip Op 08460 [112 AD3d 849] |
| December 18, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Anthony Lyons, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Jeanette Lifschitz, and Emil Bricker of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Erlbaum, J.), rendered January 31, 2011, convicting him of endangering the welfare of achild, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
In October 2007, the defendant allegedly hit his daughter (hereinafter thecomplainant) multiple times on the arms, legs, back, and torso with a metal cane, causingher to sustain linear bruising injuries and a laceration to her forehead. He was chargedwith assault in the second degree and endangering the welfare of a child. At trial, on thedefendant's case, the defendant's son (hereinafter the son) testified, among other things,as to his observation of the incident and as to statements that the complainant allegedlymade on the telephone about the incident that directly contradicted her trial testimony.Upon the People's application, the trial court struck the son's entire testimony, in partbecause the defendant failed to lay a proper foundation for the son's testimony regardingthe complainant's alleged inconsistent statements and in part because the court concludedthat the son's testimony was fabricated. The defendant was convicted of endangering thewelfare a child. On appeal, the defendant contends, among other things, that the trialcourt deprived him of his right to present a defense by striking the son's testimony.
The trial court did not err in striking so much of the son's testimony as related to thecomplainant's telephone conversations, inasmuch as the defendant failed to lay afoundation for it (see People v Duncan, 46 NY2d 74, 80-81 [1978]; People v Laurey, 24 AD3d1107, 1109 [2005]; People v Fiedorczyk, 159 AD2d 585, 586-587 [1990];cf. People v Ocampo, 28AD3d 684, 685 [2006]; butcf. People v Bradley, 99 AD3d 934, 937 [2012]). Indeed, the defendant failed toquestion the complainant at all about these alleged prior inconsistent statements. Thecourt, however, erred in striking that portion of the son's testimony which concerned hisown alleged observations of the incident. The striking of that testimony, which wasrelevant and material, deprived the defendant of his constitutional right to present adefense (see People v Gilliam, 37 NY2d 722 [1975], revg on dissent below45 AD2d 744 [1974]; cf. Taylor v Illinois, 484 US 400 [1988]; People vSiegel, 87 NY2d 536, 544 [1995]; People v Arena, 106 AD3d 1445, 1446-1447 [2013];People v Murray, 79 AD2d 993, 994 [1981]). Moreover, this error was notharmless beyond a reasonable doubt because the evidence of the defendant's guilt wasnot overwhelming and there [*2]is a reasonablepossibility that the error contributed to the defendant's conviction (see People vCrimmins, 36 NY2d 230, 237 [1975]; People v Thompson, 111 AD3d 56, 67-68 [2013]).
Accordingly, the judgment of conviction must be reversed, and a new trial ordered.
The defendant's remaining contentions either are without merit or need not beaddressed in light of our determination. Mastro, J.P., Balkin, Leventhal and Lott, JJ.,concur.