Salvatore A. Gaetani, for appellant.
Maria I. Wager, for respondent.
We held in People v Huertas (75 N.Y.2d 487 ) that a crime victim could testify to her own description of her attacker, given to the police shortly after the crime. We now hold that a police officer's testimony to a victim's description, where it does not tend to mislead the jury, may also be admissible under the Huertas rule.
Defendant was convicted of robbing Hector Velez. A video recording that shows Velez being robbed by two men was admitted into evidence, but the face of the man alleged to be defendant does not appear clearly on the video. Velez identified defendant at trial as one of the robbers and also testified, without objection, to a description he had given the police on the night of the crime of a black man "about 5'6, short hair, round face, thick eyebrows" and wearing a white shirt. The description fits defendant, but in the video the man alleged to be defendant is wearing a blueish-gray shirt. Velez testified that, before he saw the video, he realized that his description of the shirt was in error, and corrected it.
Two police officers also testified, over objection, that Velez had given a description on the night of the crime. The officers' accounts of the description were brief, and consistent with Velez's. One said that Velez had described a man "between 5'6 to 5'7 in height wearing shorts and... a white T-shirt." The other said only that Velez had described "a short black male, dark skinned."
On appeal to the Appellate Division, defendant argued that the officers' testimony had improperly bolstered that of Velez. The Appellate Division affirmed, holding that this argument was unpreserved and, as an alternative holding, that it failed on the merits (People v Smith, 95 A.D.3d 1145 ). A Judge of this Court granted leave to appeal (20 N.Y.3d 989 ), and we now affirm. II
We disagree with the Appellate Division's holding on preservation. Regardless of whether defendant's objection to the testimony was sufficiently explicit, the trial court, in response to defendant's protest, "expressly decided the question raised on appeal, " thus preserving the issue for review (CPL 470.05 ). The Appellate Division was correct, however, in rejecting defendant's argument on the merits.
The term "bolstering" is used to describe the presentation in evidence of a prior consistent statement — that is, a statement that a testifying witness has previously made out of court that is in substance the same as his or her in-court testimony. As we explained in People v Buie (86 N.Y.2d 501, 509-511 ), such statements are generally excluded by the hearsay rule, unless a hearsay exception is applicable. Prior consistent statements will often be less prejudicial to the opposing party than other forms of hearsay, since by definition the maker of the statement has said the same thing in court that he said out of it, and his credibility can be tested by cross-examination. Thus, in many cases, the admission of purely redundant hearsay creates no greater evil than waste of time. We have warned, however, that the admission of prior consistent statements may, by simple force of repetition, give to a jury an exaggerated idea of the probative force of a party's case (see People v Trowbridge, 305 NY 471, 477 ; People v Caserta, 19 N.Y.2d 18, 21 ).
Trowbridge and Caserta involved a particular kind of prior consistent statement: a previous identification of the defendant by an eyewitness to a crime. Under CPL 60.30, testimony to such an identification by the witness who made it is admissible, as an exception to the hearsay rule. Interpreting a predecessor statute to CPL 60.30, we held in Trowbridge, and reaffirmed in Caserta, that this exception extends no further than the language of the statute creating it. Testimony by one witness (e.g., a police officer) to a previous identification of the defendant by another witness (e.g., a victim) is inadmissible.
Huertas involved a different kind of prior consistent statement: a witness's description, given shortly afer the crime, of the person who committed it. Huertas held testimony about a description to be admissible not under any exception to the hearsay rule, but because the testimony is not hearsay at all. It is admitted not for the truth or accuracy of the prior description, but as "evidence that assists the jury in evaluating the witness's opportunity to observe at the time of the crime, and the reliability of her memory at the time of the corporeal identification" (Huertas, 75 N.Y.2d at 493). While the distinction Huertas makes has been criticized (see Martin, Capra and Rossi, New York Evidence Handbook § 8.2.4 at 670-671 [2d ed.]), defendant does not ask us to retreat from Huertas 's holding, and we take this occasion to reaffirm it. As a general matter, evidence as to how a witness described the offender when the witness's memory was fresh is much more likely to advance than to hinder accurate fact-finding.
The issue here is whether the rule of Huertas, like CPL 60.30's hearsay exception for prior eyewitness identifications, is limited to a witness's account of his or her own previous statement. We see nothing to justify such a limitation. A statement that is not hearsay when the declarant testifies to it does not become hearsay when someone else does so. Indeed, we recognized in People v Rice (75 N.Y.2d 929, 931 ), decided the same day as Huertas, that the rule of Huertas might make admissible "testimony of the complainant and police officers concerning a description of the perpetrator given by the complainant" (emphasis added). Several Appellate Division decisions correctly recognize that Huertas extends to cases in which the witness who recounts the description in court is not the same witness who gave the description initially (e.g., People v Linton, 62 A.D.3d 722, 723 [2d Dept 2009]; People v Ragunauth, 24 A.D.3d 472, 473 [2d Dept 2005]; People v Guerra, 168 A.D.2d 394, 395 [1st Dept 1990]). People v Williams (206 A.D.2d 917 [4th Dept 1994]), which holds otherwise, should not be followed.
Our holding today should not be interpreted as giving carte blanche to the presentation of redundant police testimony that accomplishes no useful purpose. We remarked in Rice that a recognition that police testimony to a victim's description might be admissible "does not constitute a holding that four witnesses may give this identical evidence" (75 N.Y.2d at 931 n *). A court retains discretion to exclude evidence of prior consistent statements when it reasonably finds that evidence to be more prejudicial than probative. But here, the brief recitation by two officers of Velez's description of a man who robbed him was not likely to give the jury the false impression "that ...