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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LEE WOODS, Appellant.

Ordered that the judgment is affirmed.

"If upon cross-examination a witness' testimony is assailed — either directly or inferentially — as a recent fabrication, the witness may be rehabilitated with prior consistent statements that predated the motive to falsify" ( People v McDaniel, 81 NY2d 10, 18). During cross-examination, defense counsel implied that the prosecution witness's testimony was a recent fabrication because she had received certain benefits from the police. By doing so, defense counsel opened the door for the prosecution to rehabilitate the witness's credibility with a prior consistent statement that predated the motive to fabricate ( id. at 18; see People v Sing Yuen Chen, 253 AD2d 898, 899). The prior consistent statement did not need to predate all motives to fabricate ( see People v Baker, 23 NY2d 307, 322-323; People v Jones, 289 AD2d 47, 47-48; People v Kanani, 272 AD2d 186, 187). Accordingly, the Supreme Court correctly admitted the witness's prior consistent statement.

Any error in instructing the jury on the presumption contained in Penal Law § 265.15 (3) was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions ( see People v Crimmins, 36 NY2d 230, 241-242; People v Mace, 91 AD2d 864; cf. People v Williams, 146 AD2d 659, 660-661).

The defendant's challenge to the Supreme Court's supplemental instructions on the counts charging criminal possession of a weapon in the second degree is unpreserved for appellate review, and we decline to review it in the exercise of our interest of justice jurisdiction ( see People v Harrison, 194 AD2d 627).

The defendant's remaining contention is without merit.

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PEOPLE v. WOODS
(Jan 18, 2011)