However, the parties in Smalling only analyzed the effect of the additional charge under our traditional harmless error doctrine. As such, the issue of whether prejudicial error was the proper legal standard to review the parties' claims in Smalling was not before this Court in that case (see Matter of 381 Search Warrants Directed to Facebook, Inc. , 29 N.Y.3d 231, 247, n. 7, 55 N.Y.S.3d 696, 78 N.E.3d 141 [2017] ; People v. Tapia , 33 N.Y.3d 257, 270 n. 8, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019] ). Contrary to the majority's conclusion that we implicitly adopted Greene 's analysis in Smalling (majority op. at 484 n. 2, 121 N.Y.S.3d at 737 n. 2, 144 N.E.3d at 346–47 n. 2), Smalling only cites Greene for the proposition that the changed charge "result[ed] in prejudice to defendant," while this Court cited to Nevins , 16 A.D.3d at 1047, 791 N.Y.S.2d 771 to hold that "the error is not harmless," demonstrating that we did not adopt a prejudicial error analysis in Smalling (Smalling , 29 N.Y.3d at 982, 53 N.Y.S.3d 248, 75 N.E.3d 665 ).
Rather, defendants seek only to restore their direct appeals and, as a result, they do not address the availability (or waivability) of any collateral claims. Apart from the obvious reviewability problems—we generally do not consider arguments not raised by the parties (seePeople v. Tapia, 33 N.Y.3d 257, 270 n. 8, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019] )—we are left with a complete absence of any briefing or argument that would enable the Court to reach an informed, considered, and well-reasoned decision. Undeterred, the majority decides the issue—and adopts a sweeping rule—in a handful of conclusory sentences: An appeal waiver, the majority states, relinquishes "only " those claims that "can be reviewed on direct appeal," and accordingly, waiver colloquies should never mention "collateral or federal relief" (majority op. at 560–561, 561 n. 3, 565–576, 122 N.Y.S.3d at 235–36, 236 n. 3, 239–41, 144 N.E.3d at 979–80, 980 n. 3, 983–85 [emphasis added] ).
The witness was outside the state, and could not with due diligence be brought before the court (see CPL 670.10[1]; People v Tapia, 33 N.Y.3d 257; People v Blunt, 174 A.D.3d 1504). The record further demonstrates that the People's failure to produce the witness was not the result of a strategy to avoid confrontation on the witness stand (see People v Arroyo, 54 N.Y.2d 567, 571).
However, the parties in Smalling only analyzed the effect of the additional charge under our traditional harmless error doctrine. As such, the issue of whether prejudicial error was the proper legal standard to review the parties' claims in Smalling was not before this Court in that case (see Matter of 381 Search Warrants Directed to Facebook, Inc., 29 NY3d 231, 247, n 7 [2017]; People v Tapia, 33 NY3d 257, 270 n 8 [2019]). Contrary to the majority's conclusion that we implicitly adopted Greene's analysis in Smalling (majority op at 11 n 2), Smalling only cites Greene for the proposition that the changed charge "result[ed] in prejudice to defendant," while this Court cited to Nevins (16 AD3d at 1047) to hold that "the error is not harmless," demonstrating that we did not adopt a prejudicial error analysis in Smalling (Smalling, 29 NY3d at 982).
"[A] memorandum made of a fact known or an event observed in the past of which the witness lacks sufficient present recollection may be received in evidence as a supplement to the witness's oral testimony" ( People v. Taylor , 80 N.Y.2d 1, 8, 586 N.Y.S.2d 545, 598 N.E.2d 693 [1992] ). "The foundational requirements for the admissibility of a past recollection recorded are: (1) the witness must have observed the matter recorded; (2) the recollection must have been fairly fresh at the time when it was recorded; (3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and (4) the witness must lack sufficient present recollection of the information recorded" ( People v. Tapia , 33 N.Y.3d 257, 264, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 643, 205 L.Ed.2d 385 [2019] ; seeTaylor , 80 N.Y.2d at 8, 586 N.Y.S.2d 545, 598 N.E.2d 693 ). Here, as defendant contends, the prosecution witness in question did not testify that his written statement accurately represented his knowledge and recollection when made.
"[A] memorandum made of a fact known or an event observed in the past of which the witness lacks sufficient present recollection may be received in evidence as a supplement to the witness's oral testimony" (People v Taylor, 80 N.Y.2d 1, 8 [1992]). "The foundational requirements for the admissibility of a past recollection recorded are: (1) the witness must have observed the matter recorded; (2) the recollection must have been fairly fresh at the time when it was recorded; (3) the witness must currently be able to testify that the record is a correct representation of his or her knowledge and recollection at the time it was made; and (4) the witness must lack sufficient present recollection of the information recorded" (People v Tapia, 33 N.Y.3d 257, 264 [2019], cert denied - U.S. -, 140 S.Ct. 643 [2019]; see Taylor, 80 N.Y.2d at 8).
The court providently exercised its discretion in admitting, as past recollection recorded, a detective's notes of date and time stamps that appeared on screens as he downloaded videotapes, but which did not appear on the downloaded videos. All of the foundational requirements for admission under that doctrinewere met (see People v Tapia, 33 N.Y.3d 257, 264 [2019], cert denied ___ U.S. ___, 140 S.Ct. 643 [2019]). The record clearly establishes that the detective made these notes as he was viewing the videos, and the fact that he later added defendant's name to his notes does not render them any less contemporaneous.
The court providently exercised its discretion in admitting, as past recollection recorded, a detective's notes of date and time stamps that appeared on screens as he downloaded videotapes, but which did not appear on the downloaded videos. All of the foundational requirements for admission under that doctrine were met (seePeople v. Tapia, 33 N.Y.3d 257, 264, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019], cert denied ––– U.S. ––––, 140 S. Ct. 643, 205 L.Ed.2d 385 [2019] ). The record clearly establishes that the detective made these notes as he was viewing the videos, and the fact that he later added defendant's name to his notes does not render them any less contemporaneous.
This inference is supported by, among other things, photographs revealing how this scar appeared at the time of the trial. The evidence also showed that the victim's cuts could only have been caused by a dangerous instrument (see e. g.People v. Tapia, 151 A.D.3d 437, 439, 56 N.Y.S.3d 78 [1st Dept. 2017], affd 33 N.Y.3d 257, 100 N.Y.S.3d 660, 124 N.E.3d 210 [2019] ).
This inference is supported by, among other things, photographs revealing how this scar appeared at the time of the trial. The evidence also showed that the victim's cuts could only have been caused by a dangerous instrument (see e.g. People v Tapia, 151 A.D.3d 437, 439 [1st Dept 2017], affd 33 N.Y.3d 257 [2019]).