Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Deborah Stevens Modica, J.), rendered August 24, 2005. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree and harassment in the second degree, and imposed a sentence of 90 days' incarceration.

Judgment of conviction modified on the law by vacating the sentence imposed; as so modified, affirmed, and matter remitted to the court below for resentencing in accordance with CPL 380.20.

Defendant was charged with attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) and harassment in the second degree (Penal Law § 240.26 [1]). At
trial, a police officer testified to the victim's crime scene statement identifying defendant as her attacker. Defendant's sole claim of error, that the officer's testimony was
inadmissible hearsay and bolstered the victim's testimony as to her assailant's identity, thereby fatally prejudicing the defense, is not preserved for appellate review. Before the People commenced their case, defendant objected to the officer's prospective testimony as to the victim's statement on hearsay and bolstering grounds and the court overruled the objection as premature pending proof of facts surrounding the statement, noting that the statement might be admissible under an exception to the hearsay and bolstering doctrines (see People v Buie, 86 NY2d 501 [1995]; People v Brown, 70 NY2d 513 [1987]; People v Carr, 277 AD2d 246 [2000]). As defendant thereafter did not renew the objection with the requisite specificity or interpose any further argument as to the statement's admissibility, he failed to preserve the claim for appellate review (CPL 470.05 [2]; People v West, 56 NY2d 662, 663 [1982]; People v Farfam, 34 AD3d 828, 829 [2006]). Accordingly, we find no reason to disturb the verdict of guilt. [*2]

We note that even were we to find the issue of the officer's testimony preserved for appellate review and that the victim's identification was not uttered "under the stress of excitement caused by an external event" (People v Johnson, 1 NY3d 302, 306 [2003]), we would nevertheless reach the same result. If the officer's testimony bolstered the victim's consistent identification testimony (People v McDaniel, 81 NY2d 10, 16 [1993]; People v McClean, 69 NY2d 426, 428 [1987]), the evidence was properly admitted for relevant nonhearsay purposes (People v Mendoza, 35 AD3d 507 [2006]; People v Chatmon, 31 AD3d 781, 782 [2006]; People v Smalls, 293 AD2d 500 [2002]), and because "defense counsel had unfettered cross-examination of [the] witnesses, [there was] an added assurance of reliability" (People v Herndon, 41 AD3d 130 [2007]; see also People v Valladi, 4 AD3d 195 [2004]; People v Robinson, 282 AD2d 75, 82 [2001]). In any event, "[t]he strength of the identification evidence precluded any significant probability that the [court] would have acquitted the defendant had it not been for the bolstering errors" (People v Tinsley, 159 AD2d 602, 603 [1990]), rendering the error harmless (id.; see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Taylor, 29 AD3d 713, 714 [2006]).

The court erred in imposing a single term of incarceration purporting to cover both convictions (CPL 380.20; People v Sturgis, 69 NY2d 816, 817 [1987]; People v Sacco, 294 AD2d 452, 453 [2002]). Accordingly, the matter is remitted for resentencing on each count for which defendant was convicted (People v Battle, 305 AD2d 515 [2003]; People v Diodato, 4 Misc 3d 127[A], 2004 NY Slip Op 50614[U] [App Term, 9th & 10th Jud Dists 2004]; People v Caravousanos, 2 Misc 3d 7, 11 [App Term, 9th & 10th Jud Dists 2003]).

Pesce, P.J., and Rios, J., concur.

Weston Patterson, J., dissents in part and concurs in part in a separate memorandum.Weston Patterson, J., dissents in part and concurs in part and votes to reverse the judgment of conviction and dismiss the information in the following memorandum:

In my view, the bolstering errors in this case were adequately preserved and not harmless, especially where the complainant's credibility was questionable and the evidence of defendant's guilt was not overwhelming. To the extent the majority comments that the testimony was admitted for relevant nonhearsay purposes, I disagree.

While "[t]rial courts are accorded wide discretion in making evidentiary rulings and, absent an abuse of discretion, those rulings should not be disturbed on appeal"
(People v Carroll, 95 NY2d 375, 385 [2000]), here the court abused its discretion by admitting the complainant's statement as an excited utterance over defendant's timely objection. The complainant's statement to the police identifying defendant as her assailant was not " influenced by the excitement and shock of the event' " (People v Gantt, 48 AD3d 59, 63 [2007], quoting People v Caviness, 38 NY2d 227, 231 [1975]). To the contrary, the complainant had ample opportunity to reflect upon the events leading up to her statement.

Prior to making the statement, the complainant was persistent and determined to have defendant removed from the residence. Indeed, multiple calls were made to the police in an effort to achieve this goal. When the police were initially summoned to the residence, they informed the complainant that unless there was an assault, defendant could not be arrested. The same officers returned later that evening in response to an alleged assault. The complainant [*3]alleged that 20 to 30 minutes after the police departed, defendant attacked her.

When the complainant spoke to the officers during the second visit, she had sufficient opportunity to reflect upon the events. This is evident by the fact that after defendant left the scene, prior to the alleged excited utterance, knowingly inaccurate information designed to summon the police to the scene was given to the 911 operator. Thus, it cannot be said that the complainant was still distraught or acting under the influence of the alleged excitable event when she spoke with the police officers (People v Prashad, 297 AD2d 352 [2002]). Rather, the statement was made 30 minutes later, affording the witness the opportunity to reflect and fabricate.

Since the complainant's statement did not qualify as an excited utterance, its admission constituted impermissible bolstering. Generally, a third party's testimony about a witness's previous identification is inadmissible as improper bolstering, unless it is introduced for some nonhearsay purpose or falls within a recognized exception to the hearsay rule (People v Buie, 86 NY2d 501, 510-511 [1995]). Here, the officer's testimony as to the complainant's statement clearly bolstered the complainant's prior identification of defendant and, contrary to the majority's opinion, was not admitted for a nonhearsay purpose (compare People v Chatmon, 31 AD3d 781, 782 [2006] [no improper bolstering where statement was admissible for nonhearsay purposes]; People v Coward, 292 AD2d 630 [2002] [no improper bolstering where statement was admissible as an excited utterance]; People v Carr, 277 AD2d 246, 247 [2000] [same]; People v Simms, 244 AD2d 920 [1997] [same]). Indeed, the majority does not explain how the statement was relevant, nor does the majority identify for what nonhearsay purpose the statement was introduced. In these circumstances, the court erred in admitting the testimony.

Finally, I cannot conclude that there is no significant probability that the jury would have acquitted defendant had the bolstering testimony not been admitted (People v Johnson, 57 NY2d 969, 970 [1982]). The sole evidence of defendant's guilt was the complainant's questionable testimony. As noted, the complainant alleged that defendant had attacked her only after repeated efforts to remove him from the residence had failed and after the police had advised her that no arrest could be made absent an assault. In view of the complainant's clear motive to fabricate and the lack of overwhelming evidence of defendant's guilt, the admission of the bolstering testimony was not harmless.

Since defendant has served the maximum sentence that can be imposed, there is no reason to have defendant return to court for resentencing. Accordingly, I vote to reverse defendant's conviction and dismiss the information (People v Flynn, 79 NY2d 879, 882 [1992]).
Decision Date: August 27, 2008