Opinion
No. 2007-06449.
January 26, 2010.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered May 17, 2007, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Dominick Barbieri of counsel), for respondent.
Before: Santucci, J.P., Dickerson, Eng and Chambers, JJ., concur.
Ordered that the judgment is affirmed.
As the People correctly concede, the Supreme Court improperly admitted into evidence a photograph of the victim taken when he was alive, since this evidence was not relevant to any material fact to be proved at trial ( see People v Stevens, 76 NY2d 833, 835; People v Mills, 48 AD3d 703; People v Thompson, 34 AD3d 852, 854; People v Rodriguez, 1 AD3d 386, 387; People v Kershaw, 238 AD2d 523). However, the error was harmless, as there was overwhelming evidence of the defendant's guilt ( see People v Adamo, 309 AD2d 808; People v Santiago, 255 AD2d 63), and no significant probability that the error contributed to his convictions ( see People v Mills, 48 AD3d 703; People v Thompson, 34 AD3d 852; People v Foss, 267 AD2d 505, 508).
As the People also correctly concede, it was improper for the trial court to permit the People to impeach their own witness whose testimony did not tend to disprove a material issue of the case ( see CPL 60.35; People v Fitzpatrick, 40 NY2d 44). However, that error too was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions ( see People v Murillo, 256 AD2d 423, 424; People v Comer, 146 AD2d 794, 795; People v Pellot, 186 AD2d 158, 158).