People v. Mcghee

82 A.D.3d 1264

920 N.Y.S.2d 164

2011 N.Y. Slip Op. 02701

The PEOPLE, etc., respondent,

v.John Love McGHEE, appellant.

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

March 29, 2011.

Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary S. Fidel and Ayelet Sela of counsel), for respondent.PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and JOHN M. LEVENTHAL, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered October 17, 2008, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Justice Balkin has been substituted for the late Justice Fisher, and Justice Dickerson has been substituted for former Justice Santucci ( see 22 NYCRR 670.1 [c] ).

ORDERED that the judgment is affirmed.

In 2006 the defendant was charged with murder in the second degree and manslaughter in the first degree in connection with the August 2001 beating death of Edgar Garzon in Jackson Heights, Queens. At trial in 2008, the defendant was identified as Garzon's assailant by one witness, who was 14 years old at the time of the crime, and who, it was undisputed, knew the defendant very well. The defendant sought to impeach that identifying witness with the testimony of the witness's father as to his son's “exceedingly bad” reputation in the community for truth and veracity. The Supreme Court permitted such testimony, but did not allow the father to testify that he had discussed his son's reputation with the witness's “teachers, neighbors, friends, people of that sort.” On appeal, the defendant contends, inter alia, that the Supreme Court deprived him of a fair trial in refusing to permit him to establish the basis of the father's knowledge as to his son's reputation for truth and veracity.

A party is permitted to present testimony, once a proper foundation has been laid, that a “key opposing witness” has a bad reputation in the community for truth and veracity ( People v. Pavao, 59 N.Y.2d 282, 290, 464 N.Y.S.2d 458, 451 N.E.2d 216; see People v. Hanley, 5 N.Y.3d 108, 112, 800 N.Y.S.2d 105, 833 N.E.2d 248; People v. Fernandez, 74 A.D.3d 1379, 903 N.Y.S.2d 176, lv. granted 15 N.Y.3d 780, 907 N.Y.S.2d 469, 933 N.E.2d 1062; cf. People v. Hinksman, 192 N.Y. 421, 432, 85 N.E. 676). To lay a foundation for such reputation testimony, the offering party must establish that the impeaching witness knows the opposing witness's general reputation for truth and veracity ( see Carlson v. Winterson, 147 N.Y. 652, 655–656, 42 N.E. 347; People v. Fernandez, 74 A.D.3d at 1380–1381, 903 N.Y.S.2d 176; People v. Rosario, 298 A.D.2d 244, 244–245, 748 N.Y.S.2d 153; People v. Carlo, 46 A.D.2d 764, 765, 361 N.Y.S.2d 168; cf. People v. O'Regan, 221 App.Div. 331, 335–336, 223 N.Y.S. 339; see generally Fisch on New York Evidence, § 454, at 294 [2d ed.]; Prince, Richardson on Evidence, § 6–402, at 386 [Farrell 11th ed.] ). Once the proper foundation has been laid, the impeaching witness is permitted to testify as to that reputation, but the evidence is...