Opinion
February 27, 1992
Appeal from the Supreme Court, New York County (Alvin Schlesinger, J.).
Defendant argues that there should be a reversal and a new trial because the trial prosecutor did not serve notice of his intent to introduce defendant's prior Family Court testimony concerning his son, as required by CPL 710.30. Defendant also argues that the prosecutor breached a promise not to use defendant's prior statements. Reversal is not required (see, People v. Rice, 69 N.Y.2d 781). The proof of defendant's guilt was overwhelming, and a notice of intention to offer evidence need not be served upon the defendant where the statement is one made as a witness at a prior trial where the defendant was represented by counsel (CPL 710.20). Unlike the circumstances found in People v. Jiminez ( 79 A.D.2d 442), defendant was not denied the right to fully, freely and properly prepare his defense. The prior testimony was introduced before defendant presented his case, and defense counsel had advised the jury in his opening that defendant had intended to discipline his child.
Concur — Sullivan, J.P., Carro, Rosenberger, Wallach and Rubin, JJ.