People v. DiTommaso

Tom, J.P.

(concurring). I write to direct attention to an issue that has not yet been resolved, although a number of Appellate Division cases treat it as such — whether prior testimony that is otherwise admissible under an exception to the hearsay rule may be admitted in contravention of CPL 670.10. While I concur in the result in this case, my rationale is constrained by the well recognized statutory restriction on the use of prior testimony, to which only a single exception (not pertinent here) has been recognized by the Court of Appeals (Peter Preiser, Practice Commentaries, McKinney’s Cons…