Opinion
April 21, 1977
Appeal from a judgment of the Rensselaer County Court, rendered June 25, 1975, upon a verdict convicting defendant of the crimes of murder in the second degree (Penal Law, § 125.25, subd 3) and robbery in the first degree (Penal Law, § 160.15). The defendant does not dispute the sufficiency of the People's proof. The only issue raised on appeal is the trial court's refusal to admit in evidence the prior consistent statement of defendant's alibi witness, Marie White, a friend and close relative of the defendant. Defendant contends that her testimony was attacked on cross-examination as a recent fabrication, and therefore the prior statement should have been received. In general, a witness' testimony cannot be bolstered by his prior consistent statements (Crawford v Nilan, 289 N.Y. 444, 450; Richardson, Evidence [10th ed], § 519). However, if a witness is assailed for having a motive to fabricate, "`it is competent to put in evidence statements made by him consistent with what he says on the stand, made before the motive arose'" (People v Singer, 300 N.Y. 120, 124 [emphasis supplied]; see, also, Ferris v Sterling, 214 N.Y. 249; People v Katz, 209 N.Y. 311). The exception does not apply in this case, since Ms. White's motive to favor her uncle was the same when she made her prior written statement as it was at trial. Judgment affirmed. Sweeney, J.P., Mahoney, Main, Larkin and Herlihy, JJ., concur.