People v. Hudson

147 A.D.2d 710, 538 N.Y.S.2d 321, 1989 N.Y. App. Div. LEXIS 2314

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1989
• Status: Published

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered April 28, 1986, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

We agree with the trial court that it would have been improper to allow defense counsel to impeach a witness’s trial testimony by showing that she omitted to state a fact in her testimony before the Grand Jury. Before the prior statement of this type can be used to impeach a witness’s trial testimony, it must be shown that "at [a] prior time the witness’ attention was called to the matter and that he was specifically asked about the facts embraced in the question propounded at trial” (People v Bornholdt, 33 NY2d 75, 88, cert denied sub nom. Victory v New York, 416 US 905). Since defense counsel failed to show that the Assistant District Attorney at the Grand Jury specifically asked the witness about the facts embraced in the question propounded at trial, the defendant failed to lay a proper foundation. On this basis, the statement was properly excluded (see, People v Duncan, 46 NY2d 74). Thompson, J. P., Kunzeman, Spatt and Balletta, JJ., concur.