Opinion
No. 2009-03819.
January 18, 2011.
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.
Patrick Michael Megaro, Uniondale, N.Y., for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Before: Dillon, J.P., Balkin, Leventhal and Chambers, JJ.
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 NY2d 10, 18). During cross-examination, defense counsel implied 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 AD2d 898, 899). The prior consistent statement did not need to predate all motives to fabricate ( see People v Baker, 23 NY2d 307, 322-323; People v Jones, 289 AD2d 47, 47-48; People v Kanani, 272 AD2d 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 NY2d 230, 241-242; People v Mace, 91 AD2d 864; cf. People v Williams, 146 AD2d 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 AD2d 627).
The defendant's remaining contention is without merit.