Opinion
February 3, 1989
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Callahan, J.P., Denman, Boomer, Balio and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment entered upon a jury verdict convicting him of two counts of robbery in the first degree and criminal possession of stolen property in the first degree, defendant contends that the court erred in allowing the prosecution to impeach its own witness and that the court's instruction on reasonable doubt was erroneous. It was error to permit the People to impeach their own witness because her testimony did not "tend to disprove the position" of the People (CPL 60.35, [3]). The testimony of the witness did not affirmatively damage the People's case but rather evinced a mere failure to recall the events which she had previously related. Thus, impeachment by means of a prior statement was improper (see, People v Fitzpatrick, 40 N.Y.2d 44). The error, however, was rendered harmless by the weight of the other evidence against defendant. There is no significant probability that the jury would have acquitted defendant if the prior statement had not been admitted (see, People v Crimmins, 36 N.Y.2d 230, 241-242). With respect to the court's charge, the phrase "if the scales appear to be equally balanced" was improvident; however, the court repeatedly instructed the jury on the prosecution's burden to prove defendant's guilt beyond a reasonable doubt and gave an extensive instruction on the meaning of proof beyond a reasonable doubt (see, People v Man Lee Lo, 118 A.D.2d 225, 232).