PEOPLE v. THOMAS

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The PEOPLE, etc., respondent, v. Donnell THOMAS, appellant.

Decided: December 22, 2009

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and SANDRA L. SGROI, JJ. Robert C. Mitchell, Riverhead, N.Y. (Kirk R. Brandt of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Michael J. Brennan of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (R. Doyle, J.), rendered September 18, 2007, convicting him of criminal sexual act in the first degree and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the County Court, Suffolk County, for a new trial.

The defendant's challenge to the sufficiency of the evidence is not preserved for appellate review (see CPL 470.05; People v. Hawkins, 11 N.Y.3d 484, 872 N.Y.S.2d 395, 900 N.E.2d 946). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

However, a new trial is required due to the County Court's improper admission into evidence, over the defendant's objection, of a statement given by the complainant to police concerning the events of July 31, 2006. A witness's trial testimony ordinarily may not be bolstered with pretrial statements. There are two exceptions to this rule-evidence of prompt outcry and prior consistent statements used to rebut a charge of recent fabrication. Under the prompt outcry exception, only the fact of the complaint, not its accompanying details, may be elicited. As to the latter exception, evidence of prior consistent statements may only be used after the victim's testimony is challenged on cross-examination as a recent fabrication. The prior consistent statement must have been given before the alleged motive to fabricate arose (see People v. McDaniel, 81 N.Y.2d 10, 16-18, 595 N.Y.S.2d 364, 611 N.E.2d 265; People v. Davis, 44 N.Y.2d 269, 278, 405 N.Y.S.2d 428, 376 N.E.2d 901; People v. Cardona, 60 A.D.3d 493, 874 N.Y.S.2d 474; People v. Singh, 276 A.D.2d 503, 714 N.Y.S.2d 104).

The content of the complainant's statement to police was not admissible under either of those exceptions. Accordingly, the admission of the statement into evidence after proffer by the People constituted improper bolstering of the complainant's testimony (see People v. McDaniel, 81 N.Y.2d at 16, 595 N.Y.S.2d 364, 611 N.E.2d 265). Under the circumstances of this case, such improper bolstering cannot be deemed harmless (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787).

In light of our determination, the defendant's contention regarding his sentence has been rendered academic.

The defendant's remaining contentions are without merit.

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