Opinion
March 13, 1992
Appeal from the Erie County Court, D'Amico, J.
Present — Callahan, J.P., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of assault in the second degree (Penal Law § 120.05) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01). The conviction arises out of an altercation between defendant and an acquaintance in defendant's residence. During the brief scuffle, the victim sustained a severe laceration to his head which required suturing at a local hospital. Defendant maintained that he struck the victim only with his fists, while the victim testified that he was hit on the head with a wooden table leg.
Defendant contends that the trial court committed reversible error by allowing the prosecutor to cross-examine defendant's brother regarding his failure to come forward with potentially exculpatory information prior to trial. The People may lay a foundation for such questioning by demonstrating that the witness: (1) was aware of the nature of the charges pending against the defendant; (2) had reason to recognize that he possessed exculpatory information; (3) had a reasonable motive for acting to exonerate the defendant; and (4) was familiar with the means to make the information available to law enforcement authorities (see, People v Dawson, 50 N.Y.2d 311, 321, n 4). In our view, County Court abided by the conditions and safeguards enunciated in People v Dawson (supra) and the impeachment evidence was properly admitted.
Defendant has not preserved his claim that he was denied a fair trial by the prosecutor's conduct in eliciting improper and highly speculative evidence of uncharged bad acts (CPL 470.05). In any event, although the prosecutor should have obtained an advance ruling on the admissibility of that testimony (see, People v Ventimiglia, 52 N.Y.2d 350), we conclude that any error was harmless (see, People v Crimmins, 36 N.Y.2d 230, 242; People v Croft, 176 A.D.2d 1225; People v Charleston, 175 A.D.2d 602, lv denied 78 N.Y.2d 1126). In our view, the probative value of such evidence outweighed the risk of prejudice to defendant (see, People v Alvino, 71 N.Y.2d 233, 241-242; People v Ventimiglia, supra, at 359-360).