People v. Rosario

267 A.D.2d 73, 701 N.Y.S.2d 341, 1999 N.Y. App. Div. LEXIS 12683

Opinion

—Judgments, Supreme Court, New York County (Arlene Silverman, J.), rendered June 4, 1997, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and upon his plea of guilty, of criminal possession of a weapon in the third degree, and sentencing him to concurrent terms of 25 years to life, 5 to 15 years, and 1 year, respectively, unanimously affirmed.

The court properly exercised its discretion in precluding introduction of a police report alleged to contain a prior inconsistent statement of a witness. Upon our examination of the record, we conclude that there was no inconsistency because the witness’s reference to a conversation with another person about the identity of the perpetrator did not imply that the witness lacked personal knowledge of such identity. Accordingly, the report was lacking in probative value (see, People v Duncan, 46 NY2d 74, 80-81). Moreover, defendant failed to lay a sufficiently clear foundation for admission of the report (supra; People v Robles, 234 AD2d 95, lv denied 89 NY2d 1099). In any event, defendant suffered no prejudice by the exclusion of the report since the contents thereof, including the alleged inconsistency, were presented to the jury by defense counsel through the questioning of the witness (see, People v Robles, supra, 234 AD2d, at 96). Furthermore, the court properly exercised its discretion in denying defense counsel’s belated request for a continuance to secure the attendance of police witnesses for the purpose of developing the same illusory inconsistency (see, People v Foy, 32 NY2d 473, 476). In any event, were we to find that any of the court’s rulings challenged on appeal were erroneous, we would find the error to be harmless in light of the overwhelming evidence of defendant’s guilt and the lack of probative value of the purported inconsistency. Concur — Rosenberger, J. P., Tom, Mazzarelli, Lerner and Rubin, JJ.