Opinion
July 1, 1993
Appeal from the County Court of Broome County (Mathews, J.).
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 N.Y.2d 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.