620 N.Y.S.2d 434 | N.Y. App. Div. | 1994
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Goldstein, J.), rendered February 26, 1992, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contention, the past recollection recorded consisting of one witness’s Grand Jury testimony was properly admitted into evidence after testimony established a foundation for its admission (see, People v Taylor, 80 NY2d 1, 8; see also, People v Raja, 77 AD2d 322). However, the Supreme Court erred in permitting an audiotape of a prior sworn statement by the same witness to be admitted into evidence as a past recollection recorded since the witness could not attest to the accuracy of the statement when it was made (see, People v Taylor, supra, at 8). Nevertheless, the error was harmless in view of the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230). In addition to the Grand Jury testimony in which the witness stated that he saw the defendant as he was approaching the victim and that the defendant was in possession of a machine gun immediately prior to the shooting, the witness testified that he had identified the defendant from a lineup as "the man with the gun.” Further, there was sufficient other evidence presented by the People that there is no significant probability that the jury would have acquitted the defendant but for the error (see, People v Crimmins, supra, at 242).
The fact that juror number eight told a court officer and the other jurors that he thought one of the witnesses had been his student eight years earlier is not misconduct so inherently prejudicial as to require reversal (see, People v Clark, 81 NY2d 913, 914). Absent a showing of prejudice to a substantial right,
