62 A.D.2d 1026 | N.Y. App. Div. | 1978
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 9, 1976, convicting him of robbery in the second degree, assault in the second degree, assault in the third degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The defendant and the complainant, the only persons involved in the crime, each accused the other of being the robber. There were no other persons who were witnesses to the crime. Thus, credibility was the only real issue before the jury. In this context, the court allowed each of two police officers to testify to the account of the crime given to them by the complainant. It is error to allow the prosecution to bolster the credibility of a witness by showing that he made prior consistent statements when there was no attempt to discredit the witness by showing that his testimony was a recent fabrication (Crawford v Nilan, 289 NY 444; Richardson, Evidence [Prince, 10th ed], § 519). While the evidence may have been strong enough to support a guilty verdict if the jury believed the complainant, it was not overwhelming. Since the error may have influenced the jury’s opinion of the credibility of the People’s only eyewitness, it cannot be said that the error was harmless (see People v Crimmins, 36 NY2d 230). Martuscello, J. P., Titone, Suozzi and Cohalan, JJ., concur.
