Opinion
March 8, 1991
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, and new trial granted on count one of the indictment, in accordance with the following Memorandum: On appeal from his conviction of second degree burglary and petit larceny, defendant contends that the court erred in admitting the prior testimony of a prosecution witness under the past recollection recorded exception to the hearsay rule, and that the court's charge on burglary violated the rule of People v Gaines ( 74 N.Y.2d 358). The prior testimony was improperly admitted under the past recollection recorded exception to the hearsay rule because the testimony did not meet at least one of the four requirements of that exception (see, People v Fields, 151 A.D.2d 598, 599; People v Dillenbeck, 115 A.D.2d 331, lv denied 67 N.Y.2d 650; People v Raja, 77 A.D.2d 322, 325-326). The witness must be able to swear that she believed the prior testimony to be correct at the time she gave it (People v Fields, supra; People v Raja, supra; People v Caprio, 25 A.D.2d 145, 150, affd 18 N.Y.2d 617); here, the witness did not verify the correctness of her prior testimony or otherwise establish its reliability (People v Fields, supra, at 599-600).
The court's charge was erroneous. In the circumstances presented here, the court should not have charged the "or remains" language of the burglary statute (see, People v Gaines, supra).
As a consequence of the court's errors, we reverse defendant's conviction of burglary. Neither error impacted upon defendant's conviction of petit larceny, however, and consequently we affirm that conviction.