People v. Stavris , 426 N.Y.S.2d 741 ( 1980 )

Ross and Silverman, JJ., dissent in a memorandum by Silverman, J., as follows:

I would affirm the judgment of conviction. Granted that in case of doubt, the balance should be struck in favor of admissibility, the court must still decide whether there is enough doubt as to direct or indirect inconsistency to justify admitting the alleged contradictory statement. I think that in this case there is not enough doubt as to inconsistency for us to say that the Trial Justice was wrong in excluding the prior statement of the witness Viola. Both in the prior statement and at the trial, the witness was making the very well known distinction between what a person knows of his own knowledge and what he does not so know of his own knowledge. Thus both in the prior statement and at the trial, the witness said that he did not see defendant put the money in the bag. But he said that he "did not know” that defendant had not put the money in the bag; obviously he could not have personal knowledge as to whether the defendant had put the money in the bag without the witness seeing it. At the trial he explicitly made this distinction on cross-examination, agreeing that there was "a difference between not seeing someone put money in a bag and not really knowing whether or not someone put money in a bag”; that those were "different answers”, and that he was not now saying that defendant did not put the money in the bag but only that he did not see defendant put the money in the bag. Thus, I think that the prior statement and the testimony at the trial were perfectly consistent. By the same token, "Even if I am technically wrong and enough can be squeezed from these poor and puny [inconsistencies] to turn the color of legal litmus paper” (Holmes, J., dissenting in Abrams v United States, 250 US 616, 629), the "inconsistencies” are so tenuous that the exclusion does not warrant reversal. I would add that in my view neither exclusion nor admission of the prior statement would be of sufficient significance to warrant reversal.