People v. French

1 Citing case

  1. People v. Jones

    25 A.D.3d 724 (N.Y. App. Div. 2006)   Cited 12 times

    In his pretrial audiotaped sworn statement, the eyewitness stated that he saw the defendant shoot the victim, while at trial, the eyewitness testified that he did not see who shot the victim and he did not observe the defendant at the scene when the shooting occurred. Thus, the eyewitness's trial testimony tended to disprove the People's case and affirmatively damaged the People's position. Accordingly, the People were properly permitted to employ the tape to impeach the eyewitness pursuant to CPL 60.35 (1) ( see People v. Magee, 128 AD2d 811; see also People v. French, 237 AD2d 944, 945; People v. Busiello, 234 AD2d 557; People v. Broomfield, 163 AD2d 403, 403-404; cf. People v. Fitzpatrick, 40 NY2d 44, 51). Also unpreserved for appellate review ( see People v. Nuccie, 57 NY2d 818, 819-820; People v. Pettus, 22 AD3d 869; People v. Francis, 137 AD2d 553) is the defendant's contention that the trial court failed to provide a timely or sufficiently specific instruction to the jury that it was to consider the tape only for purposes of impeachment, and not as evidence-in-chief ( see CPL 60.35).