People v. Ochoa ( 2008 )

Freedman, J.,

dissents in a memorandum as follows: I respectfully dissent, because I believe the trial court committed reversible error by allowing the prosecutor to bolster the testimony of Ruballo and Cruz, the two main witnesses against defendant, by introducing their prior consistent statements.

The jury’s verdict, which convicted defendant of robbery in the second degree for robbing Cruz of his “Xbox” video game console and money in Ruballo’s presence, by acting in concert with codefendant Nicholas Figueroa,¹ was based on the testimony by Ruballo and Cruz, who were the only witnesses to the incident. As defense counsel pointed out during cross-examination at trial, portions of Cruz’s and Ruballo’s testimony were internally inconsistent, or conflicted with each other’s trial testimony, testimony at an earlier suppression hearing, or their own prior statements to the police investigating the incident or to the grand jury. For example, Cruz testified at trial that the robbery occurred both at about 8:00 a.m. and at 2:30 p.m. He also gave inconsistent accounts of whether defendants were waiting in the apartment where the incident commenced when Cruz and Ruballo arrived, or whether they were standing on the stoop in front of the apartment building and followed them into the apartment. He first testified at trial that defendant joined Figueroa in kicking him during the robbery, but later indicated that only Figueroa kicked him, and at various times stated that defendant and Figueroa had stolen $50 and $200 from him. Cruz also made inconsistent statements about what weapons defendant and Figueroa carried, the extent of defendant’s involvement, and whether Cruz knew or had any relationship with the robbers.

Ruballo also made a number of inconsistent statements as to the sequence of events during the robbery, her relationship with defendant and Figueroa, and whether she had seen them take any money from Cruz.

On redirect examination of Cruz, the prosecutor questioned Cruz about prior statements he had made that conformed to his trial testimony, asking him whether those prior statements were correct. Defense counsel objected, stating that the prosecutor was not permitted to ask about prior consistent statements, but the objection was overruled.

On redirect examination of Ruballo, the prosecutor proposed to “go through” Ruballo’s written statement to the police “to clarify what’s incorrect and what is correct.” Defense counsel objected, stating, “The district attorney can not rehabilitate a witness with a prior inconsistent statement by picking out prior consistencies unless I claim recent fabrication on the witness stand. I’m not doing that.” The court overruled the defense objection, noting that the “District Attorney is simply trying to ascertain which part of the statement is truthful and which part was not as already testified by this witness.” The prosecutor then led Ruballo through several assertions in the statement, asking whether they were correct or incorrect. Counsel objected on the basis that “prior consistencies on an inconsistent statement are inadmissible,” but the objection was overruled.

The prior statements constituted improper bolstering and should not have been admitted. Generally, a party may not rehabilitate a witness’s testimony by showing that the witness previously made statements to the same effect (People v McDaniel, 81 NY2d 10, 16 [1993]; People v McClean, 69 NY2d 426, 428 [1987]; People v Harris, 242 AD2d 866 [1997], lv denied 91 NY2d 892 [1998]). However, after a witness’s testimony is directly or inferentially assailed as a recent fabrication, the witness may be rehabilitated with prior consistent statements that predated the motive to falsify (McDaniel, 81 NY2d at 18; McClean, 69 NY2d at 428). In applying the exception, “it is important to identify when the motive to fabricate arose,” and where “the motive may exist from the outset, . . . rehabilitation with consistent statements may be impossible” (McDaniel, 81 NY2d at 18).

While defendant’s counsel did, in fact, confront Cruz with his prior inconsistent statements, he never suggested that Cruz had recently fabricated his account of the robbery. To the contrary, defendant’s position was that Cruz had lied from the time he first made statements to the police. The People’s argument that the prosecutor merely gave Cruz an opportunity to “clarify what he was not confused about when he testified before the Grand Jury” is unavailing. The People cannot circumvent the rule against bolstering by characterizing the reexamination as a showing that Cruz was confused about some of his statements, but not all of them.

The prior consistent statements brought out on Ruballo’s redirect were even more problematic, since the prosecutor went through Ruballo’s written statement to the police while characterizing certain allegations as false, and thereby implied that the remaining statements were true.

The prosecution’s bolstering cannot be excused as harmless error. The evidence against defendant was not overwhelming² and depended entirely on Cruz’s and Ruballo’s testimony. Cruz’s and Ruballo’s credibility as witnesses is at issue because they (along with the two defendants) were crack cocaine users; in fact, Ruballo described the apartment where the incident began as a “crack house.” The jurors deliberated for three days and twice sent notes that they were deadlocked; quite possibly their impasse was caused at least in part by their wrestling with the witnesses’ confusing and contradictory testimony. For that reason, I am of the opinion the matter should be remanded for a new trial. [See 10 Misc 3d 1060(A), 2005 NY Slip Op 52055(U).]

1 . Codefendant Figueroa, who was also convicted of second degree robbery as well as other crimes (see People v Figueroa, 48 AD3d 324 [2008]), did not raise the bolstering issue on his appeal.

2 . The evidence against codefendant Figueroa was considerably stronger. For example, both Cruz and Ruballo testified that Figueroa had beaten and kicked Cruz, but their testimony conflicted as to whether defendant had done more than hold Ruballo back while Figueroa attacked Cruz. Moreover, at the sentencing hearing, Figueroa admitted that he had physically attacked Cruz and cut him, and he also stated that defendant was “innocent” and had not been involved with the incident between Figueroa and Cruz.