Opinion
June 26, 1990
Appeal from the Supreme Court, New York County, Edwin Torres, J.
Defendant and an accomplice entered a candy store/newsstand at 216 Eighth Avenue in Manhattan. After forcing Raphael Pagan, a truck driver who was minding the store for the owner, to the back of the store where a numbers betting operation was conducted, defendant shot and killed Abel Battista, the proprietor of the betting operation. Battista, who had attempted to take cover in the bathroom at the rear of the store, fired a shot out of the bathroom when defendant forced Pagan to open the bathroom door. Defendant fired into the bathroom, hitting Battista in the middle of his forehead. Pagan was shot by defendant's accomplice who was guarding the door. Raphael Pagan's teen-age son, Richard, was also present and witnessed some of the events.
The defendant had no absolute right to call eyewitness Richard Pagan to testify at the Wade hearing. (People v. Chipp, 75 N.Y.2d 327, 337.) In any event, the hearing court provided defense counsel with the opportunity to raise the Wade issue again, prior to Richard Pagan's trial testimony. Counsel's failure to do so operated as a waiver of the objection raised at the Wade hearing. (People v. Jones, 112 A.D.2d 952, 953.)
The court properly denied admission of a prior inconsistent statement made by Richard Pagan since defense counsel failed to establish the foundation necessary for the admission of such evidence. (People v. Duncan, 46 N.Y.2d 74, 80-81.) Counsel asked the witness he sought to impeach only general questions as to whether he spoke with a Spanish police officer in uniform, and neglected to ask the witness the required specific questions as to the substance of the prior statement. (People v. Duncan, supra, at 81.)
The other issues raised by defendant have been reviewed and determined to be without merit.
Concur — Kupferman, J.P., Ellerin, Wallach and Smith, JJ.