Opinion
April 18, 1988
Appeal from the Supreme Court, Queens County (Kellam, J.).
Ordered that the judgment is affirmed.
On September 23, 1985, the defendant was apprehended one-half block from the Norelco warehouse with a box containing Norelco products. The arrest occurred within minutes after the security guard telephoned the police emergency "911" number. The security guard testified as to his conversation with the "911" operator. The defense counsel subsequently sought to introduce the tape recording of the "911" conversation in order to impeach the guard's credibility through the use of his prior inconsistent statements. When the defense counsel and the Assistant District Attorney were unable to agree as to what parts of the tape should be played for the jury, the court instructed the defense counsel to play the entire tape which also contained prior consistent statements. Though the court offered to provide limiting instructions to the jury once the tape was played, the defense counsel opted not to present the tape to the jury.
While prior inconsistent statements are admissible for impeachment purposes (People v. Wise, 46 N.Y.2d 321), prior consistent statements may not be used to bolster a witness's testimony although such statements may be admissible to rebut a claim of recent fabrication or to explain or clarify an inconsistency (see, People v. Melendez, 55 N.Y.2d 445; People v Davis, 44 N.Y.2d 269; People v. Torre, 42 N.Y.2d 1036; People v Richardson, 127 A.D.2d 617, lv denied 69 N.Y.2d 954). Although redaction of the prior consistent statements would have been appropriate in the instant case, nevertheless, we find that any error in failing to order such a redaction was harmless in light of the overwhelming proof of the defendant's guilt (see, People v. Crimmins, 36 N.Y.2d 230; People v. Diaz, 118 A.D.2d 651, lv denied 68 N.Y.2d 769).
We further find no merit with respect to the defendant's claim that the court's charge was misleading and tantamount to a directed verdict. The charge, when viewed as a whole, properly apprised the jury as to the burden of proof and the elements of the crimes charged (see, People v. Diaz, supra; People v. Simon, 96 A.D.2d 1086). Eiber, J.P., Kooper, Sullivan and Balletta, JJ., concur.