| People v Memon |
| 2016 NY Slip Op 08653 [145 AD3d 1492] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vHamid Memon, Appellant. |
Thomas J. Eoannou, Buffalo, for defendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Matthew B. Powers ofcounsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (John F. O'Donnell, J.),rendered June 25, 2015. The judgment convicted defendant, upon a nonjury verdict, ofcriminal obstruction of breathing or blood circulation and unlawful imprisonment in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him, after a benchtrial, of criminal obstruction of breathing or blood circulation (Penal Law§ 121.11 [a]), and unlawful imprisonment in the second degree(§ 135.05). Initially, we note that defendant was prosecuted in theIntegrated Domestic Violence Part of Supreme Court (see 22 NYCRR 41.1 [a][1]; People v Correa, 15NY3d 213, 232-233 [2010]), and thus the appeal properly lies in this Court(see CPL 450.60 [1]; Correa, 15 NY3d at 233 n 4).
Defendant contends that the court erred in permitting him to be cross-examinedregarding prior uncharged bad acts that were strikingly similar to the acts underlying thecharges in this case. We agree. The Criminal Procedure Law provides that, "[u]pon arequest by a defendant, the prosecutor shall notify the defendant of all specific instancesof a defendant's prior uncharged criminal, vicious or immoral conduct of which theprosecutor has knowledge and which the prosecutor intends to use at trial for purposes ofimpeaching the credibility of the defendant" (CPL 240.43). Here, however, theprosecutor failed "to advise defendant before trial that he would be questioned onuncharged acts if he testified[,] and no pretrial inquiry or determination was made by thecourt . . . Because the court's failure to conduct a proper pretrial inquiry mayhave affected defendant's decision to testify at trial, the error cannot be deemed harmless"(People v Beasley, 184 AD2d 1003, 1003 [1992], affd 80 NY2d 981[1992], rearg denied 81 NY2d 759 [1992]; see People v Slide, 76 AD3d 1106, 1108-1109 [2010]; People v Montoya, 63 AD3d961, 963 [2009]).
We also agree with defendant that the court erred in permitting the prosecutor, overobjection, to elicit testimony that bolstered the testimony of the complaining witness."The term 'bolstering' is used to describe the presentation in evidence of a priorconsistent statement—that is, a statement that a testifying witness has previouslymade out of court that is in substance the same as his or her in-court testimony" (People v Smith, 22 NY3d462, 465 [2013]). Although "[p]rior consistent statements will often be lessprejudicial to the opposing party than other forms of hearsay, since by definition themaker of the statement has said the same thing in court that he said out of it" (id.at 465-466), the Court of Appeals has warned that "the admission of prior consistentstatements may, by simple force of repetition, give to a [factfinder] an exaggerated ideaof the probative force of a party's case" (id. at 466). Contrary to the People's solecontention, "[i]n light of the importance of the witnesses' credibility in this case. . . , we cannot conclude that the court's error is harmless" (People v Loftin, 71 AD3d1576, 1578 [2010]; seePeople v Thomas, 68 AD3d 1141, 1142 [2009], lv denied 14 NY3d 845[2010]; People v Caba, 66AD3d 1121, 1124 [2009]). The evidence is not overwhelming and, "[a]lthough thetrial court in a nonjury trial is presumed to have considered only competent evidence inreaching its verdict . . . , here, this presumption was rebutted" by the court'swritten decision, which establishes that the court considered the inadmissible evidence(People v Ya-ko Chi, 72AD3d 709, 710-711 [2010]).
Defendant failed to renew his motion for a trial order of dismissal after presentingevidence, and thus he failed to preserve for our review his challenge to the legalsufficiency of the evidence (see People v Hines, 97 NY2d 56, 61 [2001],rearg denied 97 NY2d 678 [2001]). Viewing the evidence in light of the elementsof the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), weconclude that the verdict is not against the weight of the evidence (see generallyPeople v Bleakley, 69 NY2d 490, 495 [1987]). "In a bench trial, no less than a jurytrial, the resolution of credibility issues by the trier of fact and its determination of theweight to be accorded the evidence presented are entitled to great deference" (People v Ghent, 132 AD3d1275, 1275 [2015], lv denied 26 NY3d 1145 [2016] [internal quotationmarks omitted]; see People vMcCoy, 100 AD3d 1422, 1422 [2012]). The victim's testimony was notincredible as a matter of law (see People v Ptak, 37 AD3d 1081, 1082 [2007], lvdenied 8 NY3d 949 [2007]), and the court was entitled to credit the testimony of thevictim and the other prosecution witnesses and to reject the testimony of defendant andthe defense witnesses. "[U]pon our review of the record, we cannot say that the courtfailed to give the evidence the weight that it should be accorded" (People v Britt,298 AD2d 984, 984 [2002], lv denied 99 NY2d 556 [2002]).Present—Whalen, P.J., Smith, DeJoseph, NeMoyer and Troutman, JJ.