People v. Jones

126 A.D.2d 974, 511 N.Y.S.2d 748, 1987 N.Y. App. Div. LEXIS 42093

Opinion

Judgment unanimously reversed, on the law, and as a matter of discretion in the interest of justice, and new trial granted. Memorandum: Defendant contends that the trial court erred in permitting the People, pursuant to CPL 60.35, to impeach their witness’s testimony by her prior plea allocution. We agree. A plea allocution being neither signed nor sworn may not be used for impeachment (CPL 60.35; People v Wright, 41 NY2d 118, 120-121; People v Vega, 108 AD2d 766). Further, the People, being amply warned of their witness’s intent to recant her prior admissions, are not permitted to impeach her testimony by her prior statement (see, People v Broadwater, 116 AD2d 1022, 1023). The use in minute detail of this prior statement was egregious error as it not only impeached the witness’s credibility, but bolstered the crucial elements of the People’s case. Under these circumstances, defendant’s failure to object to the use of this statement and the court’s instruction that this statement was to be considered only for impeachment purposes, does not preclude our consideration of the issue and reversal of the conviction in the interest of justice (People v Broadwater, supra). (Appeal from judgment of Niagara County Court, DiFlorio, J.—murder, second degree.) Present—Callahan, J. P., Doerr, Boomer and Lawton, JJ.