The People, etc., respondent, v. Lee Woods, appellant. (2011)

Submitted-December 17, 2010

DECISION & ORDER

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, attempted aggravated murder, and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

“If upon cross-examination a witness' testimony is assailed-either directly or inferentially-as a recent fabrication, the witness may be rehabilitated with prior consistent statements that predated the motive to falsify” (People v. McDaniel, 81 N.Y.2d 10, 18).   During cross-examination, defense counsel inferred that the prosecution witness's testimony was a recent fabrication because she had received certain benefits from the police.   By doing so, defense counsel opened the door for the prosecution to rehabilitate the witness's credibility with a prior consistent statement that predated the motive to fabricate (id. at 18;  see People v. Sing Yuen Chen, 253 A.D.2d 898, 899).   The prior consistent statement did not need to predate all motives to fabricate (see People v. Baker, 23 N.Y.2d 307, 322-323;  People v. Jones, 289 A.D.2d 47, 47-48;  People v. Kanani, 272 A.D.2d 186, 187).   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 significant probability that the error contributed to his convictions (see People v. Crimmins, 36 N.Y.2d 230, 241-242;  People v. Mace, 91 A.D.2d 864;  cf.  People v. Williams, 146 A.D.2d 659, 660-661).

The defendant's challenge to the Supreme Court's supplemental instructions on the counts charging criminal possession of a weapon in the second degree is unpreserved for appellate review, and we decline to review it in the exercise of our interest of justice jurisdiction (see People v. Harrison, 194 A.D.2d 627).

The defendant's remaining contention is without merit.

DILLON, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court