People v. Torrel Smith
AD2 order dated May 15, 2012, affirming judgment of conviction. Decision below: 95 AD3d 1145, 944 NYS2d 289. Lippman, Ch.J., granted leave December 28, 2012.
In an ID case, whether the trial court properly allowed police officers to testify to the description the complainant gave to them immediately after the robbery; whether People v. Huertas (75 NY2d 487), which allows such testimony from the victim, should be extended to testimony by police officers.
Issue before the Court: Does People v. Huertas, 75 N.Y.2d 587 (1990), which allows a crime victim to testify to his or her own prior description to the police of the perpetrator allow a police officer to testify to the victim’s prior description.
Held: Yes, where it does not tend to mislead the jury. As the theory underlying Huertas is that the prior description is not hearsay admitted for its truth but to show the witness’s opportunity to view and the reliability of her memory at the time of the corporeal identification, “it does not become hearsay when someone else” testifies to it.
Judge Rivera was the sole dissenter, calling out the police testimony as nothing more than bolstering prior consistent statements.