People v. Gardner

204 A.D.3d 1509

167 N.Y.S.3d 291

The PEOPLE of the State of New York, Respondent,

v.Josiah D. GARDNER, Defendant-Appellant.

241

KA 18-01574

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: April 29, 2022

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed as a matter of discretion in the interest of justice and on the law and a new trial is granted.

Memorandum: On appeal from a judgment convicting him upon a jury verdict of burglary in the second degree ( Penal Law § 140.25 [2] ), defendant contends, inter alia, that the conviction is not based on legally sufficient evidence and that the verdict is against the weight of the evidence. Assuming, arguendo, that defendant preserved for our review his challenge to the legal sufficiency of the evidence (see generally People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ), we conclude, after viewing the evidence in the light most favorable to the People (see People v. Contes , 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983] ), that the evidence is legally sufficient to support the conviction (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We further conclude, after viewing the evidence in light of the crime as charged to the jury (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), that the verdict is not against the weight of the evidence (see generally Bleakley , 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

Defendant further contends that County Court erred in admitting in evidence a written statement of a prosecution witness as a past recollection recorded. We agree. "[A] memorandum made of a fact known or an event observed in the past of which the witness lacks sufficient present recollection may be received in evidence as a supplement to the witness's oral testimony" ( People v. Taylor , 80 N.Y.2d 1, 8, 586 N.Y.S.2d 545, 598 N.E.2d 693 [1992] ). "The foundational requirements for the admissibility of a past recollection recorded are: (1) the witness must have observed the matter recorded; (2) the recollection must have been fairly fresh at the time when it was recorded; (3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and (4) the witness must lack sufficient present recollection of the information recorded" ( People v. Tapia , 33 N.Y.3d 257, 264, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 643, 205 L.Ed.2d 385 [2019] ; see Taylor , 80 N.Y.2d at 8, 586 N.Y.S.2d 545, 598 N.E.2d 693 ).

Here, as defendant contends, the prosecution witness in question did not testify that his written statement accurately represented his knowledge and recollection when made. To the contrary, the witness testified that the statement was not accurate when given because he was under the influence of narcotics at that time (see People v. DiTommaso , 127 A.D.3d 11, 12, 2 N.Y.S.3d 494 [1st Dept. 2015], lv denied 25 N.Y.3d 1162, 15 N.Y.S.3d 294, 36 N.E.3d 97 [2015] ; People v. Wilkinson , 120 A.D.3d 521, 522, 990 N.Y.S.2d 270 [2d Dept. 2014] ). Moreover, because the statement was made more than six months after the alleged events recorded therein, the recollection was not "fairly fresh" when recorded ( DiTommaso , 127 A.D.3d at 12, 2 N.Y.S.3d 494 ; see Wilkinson , 120 A.D.3d at 522, 990 N.Y.S.2d 270 ; People v. Eli , 250 A.D.2d 418, 419, 673 N.Y.S.2d 93 [1st Dept. 1998], lv denied 92 N.Y.2d 851, 677 N.Y.S.2d 82, 699 N.E.2d 442 [1998] ). The court therefore erred in admitting the written statement in evidence over defendant's objection.

Defendant also contends that the court erred in instructing the jury on accomplice liability. In its instructions, the court stated that a person could be liable for the conduct of another "when acting with the state of mind required for the commission of that offense, he or she...