| People v Maxam |
| 2016 NY Slip Op 00391 [135 AD3d 1160] |
| January 21, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Wayne D. Maxam, Appellant. |
Adam G. Parisi, Schenectady, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Hannah E.C. Moore, New YorkProsecutors Training Institute, Inc., Albany, of counsel), for respondent.
Clark, J. Appeal from a judgment of the County Court of Washington County(McKeighan, J.), rendered June 28, 2013, upon a verdict convicting defendant of thecrimes of strangulation in the second degree, assault in the third degree and endangeringthe welfare of a child (two counts).
Defendant was charged in a four-count indictment alleging various crimes stemmingfrom his involvement in a violent domestic dispute that occurred late in the evening ofDecember 21, 2012 at his home in the Town of Hebron, Washington County. Followinga jury trial, defendant was convicted of one count of strangulation in the second degree,one count of assault in the third degree and two counts of endangering the welfare of achild. Defendant was sentenced, as a second felony offender, to an aggregate prison termof seven years, to be followed by five years of postrelease supervision, and ordered topay a fine of $2,000. Defendant now appeals.
The sole issue before us is defendant's contention that he was denied his right to afair trial on the basis of County Court's ruling excluding the victim's prior writtenstatement from evidence. We find this argument to be without merit and affirm.
"It is well established that a witness' prior inconsistent statements may be used toimpeach his [or her] trial testimony [a]nd the test of inconsistency . . . is notlimited to outright contradictions between a witness' prior statements and his [or her] trialtestimony" (People v Bornholdt, 33 NY2d 75, 88 [1973] [citation omitted];see People v Wise, 46 NY2d 321, [*2]326[1978]; People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442 US910 [1979]). However, before a witness may be impeached with such a statement, aproper foundation must be laid (see People v Concepcion, 175 AD2d 324, 327[1991], lv denied 78 NY2d 1010 [1991]), and, "[i]f the witness denies that thestatement was made or does not remember making it, he or she may be impeached by thetestimony of others who heard the statement" (People v Carter, 227 AD2d 661,663 [1996], lv denied 88 NY2d 1067 [1996]).
Here, while cross-examining the victim at trial, defense counsel questioned her aboutthe statement that she gave to State Trooper Joseph Smith several hours after the attackoccurred. Specifically, counsel asked the victim if she remembered giving a statement toSmith, to which she said, "I don't recall. I don't remember a lot." Counsel then asked,"You don't remember giving a statement?" to which the victim answered, "I remembergiving a statement, yes, I do, but everything was jumbled." Counsel then asked if thevictim remembered telling Smith that she was sleeping on the couch just before thealtercation. The victim denied making such statement and explained that she told Smiththat she was lying on the couch trying to go to sleep. After being shown the statement bycounsel, the victim confirmed that it was, in fact, the statement she vaguely recalledbeing read to her by Smith and that she had signed. Defendant then unsuccessfullyattempted to offer the victim's statement into evidence. County Court sustained thePeople's hearsay objection, noting that Smith was available to be called as a witness andquestioned with regard to the victim's statement. Inasmuch as defendant failed to lay aproper foundation for admission of this hearsay evidence, we find no abuse of discretionin County Court's ruling.
Additionally, a further inquiry into the substance of defendant's appellate contentionsdemonstrates that the victim's prior statement was not sufficiently inconsistent with hertrial testimony to warrant its use on cross-examination (see People v Wise, 46NY2d at 326). In this regard, defendant highlights the following purportedinconsistencies in the victim's statement to Smith: (1) at trial, the victim stated that whendefendant returned to the apartment, she was lying on the couch, whereas, in the writtenstatement, she stated that she was asleep on the couch; (2) at trial, the victim stated thatwhen defendant returned to the apartment, he unplugged his television and told thevictim that he was taking everything, whereas the written statement does not mentionunplugging the television or that defendant said he was taking everything; (3) at trial, thevictim stated that after defendant attacked her, she lost consciousness, while in thewritten statement she stated only that she thought she would black out; and (4) at trial,the victim stated that defendant released her and she ran into the driveway, whereas, inthe written statement, the victim claimed that she was somehow able to break free whendefendant relaxed his grip.
Only the victim's prior statement that she thought she would black out even remotelyspeaks to an ultimate and material jury issue, as the charge of strangulation in the seconddegree requires the victim to experience stupor or loss of consciousness (seePenal Law § 121.12; People v Diaz, 20 NY3d 569, 576 [2013]). However,County Court's decision to not admit the victim's statement was not an abuse ofdiscretion given that defendant was afforded the opportunity to call Smith in hiscase-in-chief. The three remaining alleged inconsistencies are collateral to the point ofbeing irrelevant and, in our view, have no bearing on the victim's overall credibility (see People v Ludwig, 24 NY3d221, 233 [2014]). Thus, measured against the appropriate standards of law, theevidence was properly precluded. Finally, even if we were to find that County Courtshould have admitted the statement, it would be harmless error in light of theoverwhelming evidence of defendant's guilt, which included the victim's and otherwitness testimony as well as photographs and medical evidence (see People v Anderson, 114AD3d 1083, 1087 [2014], lv denied 22 NY3d 1196 [2014]).
[*3] Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ.,concur. Ordered that the judgment is affirmed.