People v. Walters

105 A.D.2d 1098, 482 N.Y.S.2d 404, 1984 N.Y. App. Div. LEXIS 21188

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1984
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: On appeal from his conviction for robbery, second degree, defendant argues that the court erred in denying his offer to prove as part of the defendant’s case that Nathaniel Copes, who as a witness for the People had identified defendant as one of the robbers, had himself admitted committing the crime to a fellow jail inmate. The court correctly ruled that the testimony of the inmate could not be admitted for impeachment purposes because defense counsel on cross-examination of Copes failed to lay the foundation for such testimony (see Richardson, Evidence [10th ed], § 502). The court also properly refused to permit the defense to recall Copes for further cross-examination for the purpose of permitting the defense to impeach him pursuant to CPL 60.35. At no time did defendant offer the proof as a declaration against penal interest and thus he failed to preserve the issue for our review (see People v Harrell, 59 NY2d 620; People v Adams, 57 NY2d 1035). On the record before us, we see no reason to exercise our discretion to reach that question in the interest of justice (see CPL 470.15, subd 6, par [a]; People v Thomas, 50 NY2d 467, 473). We have examined the other points raised on appeal and find them to be without merit. (Appeal from judgment of Cayuga County Court, Corning, J. — robbery, second degree.) Present — Dillon, P. J., Hancock, Jr., Green, Moule and Schnepp, JJ.