Opinion
April 12, 1994
Appeal from the Supreme Court, Bronx County (Joseph Mazur, J.).
Viewing the evidence in a light most favorable to the prosecution and giving it the benefit of every reasonable inference (People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), a rational jury could have found that defendant's firing of a gun from the front door of an apartment building into a city street at 8:00 in the evening constituted reckless conduct evincing wanton indifference to human life and creating a grave risk of death to another person (Penal Law § 125.25; People v Roe, 74 N.Y.2d 20, 24).
There is no merit to defendant's contention that the trial court erroneously allowed the People to impeach their own witness (CPL 60.35). The prosecutor's attempts to refresh the witness's memory regarding events that he had recounted to the police and the grand jury was not improper since the prosecutor never disclosed the contents of those prior comments to the jury (People v Reed, 40 N.Y.2d 204, 207; compare, People v Navarette, 131 A.D.2d 326, lv denied 70 N.Y.2d 705). Nor does the record indicate that the prosecutor acted in bad faith; the witness was not called merely with the hope of evoking an inference of guilt by way of impeachment (compare, People v Russ, 79 N.Y.2d 173). In any event, the jury is presumed to have followed the court's specific instruction not to rely on the prosecutor's questions rather than the evidence presented (see, People v Berg, 59 N.Y.2d 294, 299-300).
Concur — Rosenberger, J.P., Ellerin, Kupferman, Ross and Rubin, JJ.