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Oddone Decision, Court of Appeals

Oddone Decision, Court of Appeals

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Oddone Decision, Court of Appeals
Oddone Decision, Court of Appeals

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Published by: asamahavv on Dec 16, 2013
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================================================================= This opinion is uncorrected and subject to revision beforepublication in the New York Reports.-----------------------------------------------------------------No. 236  The People &c., Respondent, v.Anthony Oddone, Appellant.Marc Wolinsky, for appellant.Anne E. Oh, for respondent.Innocence Project, Inc. and New York City BarAssociation, amici curiae.SMITH, J.:Defendant was convicted of manslaughter in the firstdegree for causing the death of a man by holding himin aheadlock. The duration of the headlock was an important issue attrial. Defendant argues that several of the trial court'srulings in admitting and excluding evidence related to that issue- 1 -
- 2 -No. 236were mistaken. As to one of those rulings -- the court's refusalto permit defendant to refresh his witness's recollection with astatement the witness had previously given -- we agree withdefendant, and order a new trial.
 The victim, Andrew Reister, was a bouncer in a bar. Onthe night in question, defendant and a young woman were in thebar, dancing on a table. Reister asked defendant to get off thetable, defendant refused, and Reister pushed himoff. Therefollowed a fight. In short order, defendant got behind Reisterand put his arms around his neck; one of defendant's hands wasgrasping the other. After an interval, Reister fell to the floorand defendant fell on top of him, not releasing his grip, thoughReister seemed to onlookers to be unconscious. Several peoplescreamed at defendant to let Reister go, and some tried withoutsuccess to pull defendant away. Finally, defendant let go andran out of the bar, leaving Reister unconscious on the floor. Reister was declared brain dead two days later.Defendant was indicted for murder and relied on adefense of justification (self-defense). At his trial, thePeople asked seven of their witnesses to estimate the duration othe headlock. The estimates varied, but most put the total time,beginning when defendant's arms first went around Reister's neckand ending when he released him, at somewhere near three minutes.  Two defense witnesses gave shorter estimates; by their telling,- 2 -
- 3 -No. 236the headlock may have lasted less than a minute. The jury acquitted defendant of murder, but convictedhimof manslaughter in the first degree (causing death with theintent to cause serious physical injury [Penal Law § 125.20 (1)])as a lesser included offense. The Appellate Division affirmed(People v Oddone, 89 AD3d 868 [2d Dept 2011]). A Judge of thisCourt granted leave to appeal (20 NY3d 1102 [2013]), and we nowreverse and order a new trial.
Of the issues raised by defendant on this appeal, wefind three -- all related to what witnesses were or were notallowed to say about the duration of the headlock -- that callfor discussion. Defendant challenges the following evidentiaryrulings: (1) James Wilson, the doctor who performed an autopsyon Reister's body, was permitted to testify that in his opinionReister's neck had been compressed for "something in the range o2, 3, 4 minutes." (2) When Megan Flynn, a defense witness, testifiedthat the duration of the part of the incident she observed "couldhave been a minute or so," defense counsel was not allowed torefresh her recollection with a prior statement that put the sameinterval at "maybe 6 to 10 seconds." (3) Steven Penrod, an expert in eyewitnessobservation, was not permitted to testify that eyewitnesses- 3 -

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