Opinion
January 25, 1988
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
The defendant's contention that he was not advised of his Miranda warnings is without merit. The record clearly supports the hearing court's specific findings that the defendant was read his constitutional Miranda warnings from a standard Police Department card, that the defendant said he understood and waived those rights and that the defendant signed and dated the rights card. Accordingly, there is no reason to disturb the court's denial of the defendant's motion to suppress his statements (see, People v Valencia, 126 A.D.2d 764, lv denied 69 N.Y.2d 956; People v Armstead, 98 A.D.2d 726).
Neither did the court's Sandoval ruling allowing questioning as to the underlying facts of a 1975 disorderly conduct conviction and permitting the prosecutor to adduce that the defendant had been convicted of a felony in 1976, without revealing the underlying crime, deprive the defendant of a fair trial. It was also proper for the trial court to admit into evidence for impeachment purposes a concededly falsified employment application in which the defendant stated that he had never been convicted of a crime. This application was relevant to and could significantly bear upon the question of the defendant's credibility (see, People v Smith, 103 A.D.2d 859). Furthermore, the defendant did not request an advance ruling to preclude cross-examination concerning the false employment application. He therefore failed to carry his burden to "inform the court of the prior convictions and misconduct which might unfairly affect him as a witness in his own behalf" (People v Sandoval, 34 N.Y.2d 371, 378; accord, People v Carter, 113 A.D.2d 949).
The defendant further contends that the elements required to prove the crime of rape in the first degree, a class B felony (see, Penal Law § 130.35), are virtually identical to the elements required to prove the crime of sexual misconduct, a class A misdemeanor (see, Penal Law § 130.20), and therefore that he is entitled to receive the benefit of the lesser penalty (i.e., a maximum sentence of one year for a class A misdemeanor pursuant to Penal Law § 70.15). This contention was not raised in the trial court and thus has not been preserved for appellate review. In any event, it is without merit. The definitional overlap between these two crimes is well recognized by the courts in this State, and it has repeatedly been held that there is no impropriety in a prosecutor's proceeding under a theory of rape in the first degree rather than sexual misconduct (see, People v Gillis, 67 A.D.2d 1008; People v Vicaretti, 54 A.D.2d 236).
Also without merit is the defendant's contention that the trial court improperly refused to allow him to introduce into evidence an allegedly prior inconsistent statement made by one of the People's witnesses immediately following the incident. While it is true that a witness's prior inconsistent statement may be used to impeach his trial testimony even if it does not directly contradict the witness's testimony (see, People v Bornholdt, 33 N.Y.2d 75, cert denied sub nom. Victory v New York, 416 U.S. 905; People v Stavris, 75 A.D.2d 507), and that the courts of this State are liberal as to the degree of inconsistency required for admissibility of a prior statement (see, Fisch, New York Evidence § 474 [2d ed]), it is likewise true that a witness may not be impeached simply by showing that he omitted to state a fact or to state it more fully at a prior time (see, People v Bornholdt, supra). In this regard, it must be shown that "at the prior time the witness' attention was called to the matter and that he was specifically asked about the facts embraced in the question propounded at trial" (People v Bornholdt, supra, at 88). In the instant case, the statement given to the police by the witness was not inconsistent with his trial testimony but, rather, it was less specific and contained fewer details than the trial testimony. Insofar as the defendant failed to show that, in fact, at the time of the witness's original statement he had been specifically asked about the facts embraced in the questions propounded at trial, the defendant failed to lay a proper foundation, and, for this reason alone, the statement was properly excluded (see, People v Duncan, 46 N.Y.2d 74). Moreover, we note that the court permitted defense counsel to adduce, on cross-examination of the witness and the police officer to whom the statement was given, that the prior statement contained no mention of rape.
We have reviewed the defendant's remaining contentions, including those raised in his supplemental pro se brief, and find them to be either unpreserved for appellate review or without merit. Thompson, J.P., Brown, Spatt and Sullivan, JJ., concur.