Opinion
December 30, 1999
Appeal from Judgment of Erie County Court, DiTullio, J. — Murder, 1st Degree.
Judgment unanimously affirmed.
PRESENT: PINE, J. P., HAYES, PIGOTT, JR., HURLBUTT AND CALLAHAN, JJ.
Memorandum:
Defendant contends that he was denied a fair trial because County Court improperly overruled his objections to proffered testimony and allowed the prosecutor to ask leading questions. We reject that contention. The challenged evidentiary rulings either are not erroneous or constitute harmless error ( see, People v. Crump, 254 A.D.2d 742, lv denied 92 N.Y.2d 1030, 93 N.Y.2d 968). The prosecutor laid a proper foundation for impeaching defendant's mother on cross-examination regarding her failure to come forward with potentially exculpatory information prior to trial; thus, the court properly allowed the testimony ( see, People v. Miller, 89 N.Y.2d 1077, 1079; People v. McCleary, 181 A.D.2d 1029, lv denied 80 N.Y.2d 835). The court did not abuse its discretion in refusing to admit in evidence a written prior inconsistent statement by a prosecution witness. The substance of that prior statement was already in evidence through defense counsel's thorough cross-examination of that witness ( see, People v. Piazza, 48 N.Y.2d 151, 164-165). As we previously held in the codefendant's appeal, "the court properly determined that the photo array and pretrial identification procedures were not impermissibly suggestive" and "the tape recording of the 911 call was admissible as an excited utterance" ( People v. McKinnon, 262 A.D.2d 995, 996, [decided June 18, 1999], lv denied 93 N.Y.2d 1004). The sentence is neither unduly harsh nor severe. We have considered defendant's remaining contentions and conclude that they are lacking in merit.