People v. Jimenez ( 1984 )

Sandler, J. P. (concurring).

I am in general sympathy with Mr. Justice Silverman’s view that prior consistent statements by a witness subject to cross-examination should rarely be a ground for reversal, and that there is much to be said for a more liberal attitude with regard to the admissibility of such statements. These general observations seem to me peculiarly unsuited to the issue presented in this case for reasons quite clearly set forth in the court’s opinion.

In this case, the prior statement was presented to the jury in the dramatic form of a tape recording accompanied by a written transcript. The ground assigned for permitting the tape to be heard by the jury was palpably insufficient to justify the admission. As the case was tried, the improperly admitted tape recording might well have been the most decisive piece of evidence in the case. This was peculiarly the kind of situation in which it would be unrealistic to assume that the jury abided by the court’s limiting instruction. Any doubt on that issue was surely dispelled by the fact that the trial assistant clearly used the tape recording in a manner not sanctioned by the court’s limiting instruction, and that inexplicably the trial court overruled the timely objection.

Under the circumstances disclosed, I am persuaded that the erroneous admission of the prior statement was prejudicial error, and that a reversal of the conviction is accordingly required.