The People, etc., respondent, v. Paul Harris, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Paul Harris, appellant.

2011–11308 (Ind.No. 6247/09)

-- December 11, 2013

THOMAS A. DICKERSON, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN ROBERT J. MILLER, JJ. Lynn W.L. Fahey, New York, N.Y. (Jenin Younes of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.

Argued—October 31, 2013

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered November 21, 2011, convicting him of manslaughter in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that the trial court erred in permitting the People to impeach their own witness with prior inconsistent statements contained in that witness's grand jury testimony is unpreserved for appellate review (see CPL 470.05[2];  see also People v. Jones, 25 AD3d 724, 725).   In any event, the defendant's contention is without merit.   In his grand jury testimony, the witness testified that he saw the defendant at the crime scene at the time of the shooting with a gun in his hand, and that the defendant shot him.   However, at trial, the witness testified that he did not see the defendant at the crime scene.  “Thus, the eyewitness's trial testimony tended to disprove the People's case and affirmatively damaged the People's position” (People v. Jones, 25 AD3d at 725).   Accordingly, the trial court properly allowed the People to impeach the witness pursuant to CPL 60.35 with his grand jury testimony (see id.;  People v. Broomfield, 163 A.D.2d 403, 403–404;  People v. Magee, 128 A.D.2d 811, 811;  cf.  People v. Fitzpatrick, 40 N.Y.2d 44, 51).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contentions are without merit.

DICKERSON, J.P., CHAMBERS, ROMAN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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