Opinion
KA 01-02135.
December 31, 2003.
Appeal from a judgment of Erie County Court (D'Amico, J.), entered October 9, 2001, convicting defendant after a jury trial of rape in the first degree and criminal contempt in the first degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (MARY GOOD OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (RAYMOND C. HERMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, PINE, HURLBUTT, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted on counts one and three of the indictment.
Memorandum: On appeal from a judgment convicting him following a jury trial of rape in the first degree (Penal Law § 130.35) and criminal contempt in the first degree (§ 215.51 [b] [v]), defendant contends that County Court erred in allowing the People to impeach their own witness. We agree. CPL 60.35 (1) "allows a party in a criminal proceeding to impeach his [or her] own witness with a prior inconsistent statement, signed and in writing, when that witness `gives testimony upon a material issue of the case which tends to disprove the position of such party'" ( People v. Maerling, 64 N.Y.2d 134, 141; see People v. Saez, 69 N.Y.2d 802, 804). "The testimony [that] is sought to be impeached * * * must be elicited during direct examination by the [party seeking to impeach his or her own witness]" ( People v. Tirado, 203 A.D.2d 309, 309-310, lv denied 83 N.Y.2d 915; see 60.35 [1]; People v. Rodwell, 246 A.D.2d 916, 918; People v. Zenger, 134 A.D.2d 640, lv denied 70 N.Y.2d 1012). In this case, the testimony that was sought to be impeached was elicited on cross-examination by defense counsel, however, and thus impeachment by the prosecutor on redirect examination was improper ( see People v. Fuller, 66 A.D.2d 27, 36-37, affd 50 N.Y.2d 628; Zenger, 134 A.D.2d at 640).
Contrary to the contention of the People, the scope of defense counsel's cross-examination did not exceed the scope of direct examination such that the People's witness was transformed into a defense witness ( cf. Maerling, 64 N.Y.2d at 141-142; People v. Dolan, 172 A.D.2d 68, 75-76, lv denied 79 N.Y.2d 946). In any event, in a criminal case, "a party may prove through cross-examination any relevant proposition, regardless of the scope of the direct examination" ( People v. Kennedy, 70 A.D.2d 181, 186, citing People v. Fowler, 46 A.D.2d 838, affd sub nom. People v. Broadie, 37 N.Y.2d 100, cert denied 423 U.S. 950, and People v. Tice, 131 N.Y. 651; see e.g. People v. Rowe, 236 A.D.2d 637, 638, lv denied 89 N.Y.2d 1100; People v. Gonzalez, 131 A.D.2d 873, 874, lv denied 70 N.Y.2d 800). Defense counsel's questioning elicited relevant information concerning the nature of the relationship between defendant and the complainant and the actions of the complainant following the alleged rape. Because the evidence of guilt in this case is not overwhelming, it cannot be said that the error is harmless ( see People v. Crimmins, 36 N.Y.2d 230, 241-242). In view of our determination, we see no need to address defendant's remaining contentions.