People v. Donahue

195 A.D.2d 619, 599 N.Y.S.2d 748, 1993 N.Y. App. Div. LEXIS 6875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1993
• Status: Published

Opinion

Crew III, J.

Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered November 6, 1991, upon a verdict convicting defendant of the crimes of burglary in the first degree (three counts), robbery in the second degree, assault in the first degree and attempted robbery in the first degree (two counts).

On this appeal, defendant contends that County Court erred by permitting the People to impeach their own witness in accordance with the provisions of CPL 60.35. We disagree. Contrary to defendant’s contention, the testimony of the witness, rather than being neutral, clearly contradicted material aspects of the People’s case (see, People v Fitzpatrick, 40 NY2d 44). Additionally, the People had no forewarning that the testimony of the witness would be contradictory of that given before the Grand Jury. Indeed, from all that appears in the record, trial counsel met with the witness six days before he was called to testify and was given no indication that the witness’s testimony would be other than as testified to at the Grand Jury.

Given the fact that the People were clearly surprised by the witness’s trial testimony, that it tended to disprove material elements of their case and that County Court gave explicit instructions to the jury regarding the portent of the witness’s prior Grand Jury testimony and the purpose for which it was offered, we find no error in County Court’s ruling. Accordingly, the judgment should be affirmed.

Mikoll, J. P., Yesawich Jr., Mercure and Harvey, JJ., concur. Ordered that the judgment is affirmed.