PEOPLE v. CARTLEDGE (2008)

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1] ).  We agree with defendant that County Court erred in permitting the prosecutor to impeach his own witness.  As defendant correctly contends, the trial testimony of that witness “did not tend to disprove the People's position with respect to a material fact or affirmatively damage the People's case” (People v. Rodriquez, 24 A.D.3d 1321, 805 N.Y.S.2d 910, lv. denied 6 N.Y.3d 817, 812 N.Y.S.2d 457, 845 N.E.2d 1288;  see CPL 60.35[1] ).  The error, however, is harmless inasmuch as the evidence of defendant's guilt is overwhelming, and there is no significant probability that defendant otherwise would have been acquitted (see People v. Saez, 69 N.Y.2d 802, 804, 513 N.Y.S.2d 380, 505 N.E.2d 945;  Rodriquez, 24 A.D.3d 1321, 805 N.Y.S.2d 910;  see generally People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787).  Contrary to defendant's further contention, “there was a sufficient factual predicate to support a jury instruction on the concept of flight as evidence of consciousness of guilt” (People v. Robinson, 10 A.D.3d 696, 696, 781 N.Y.S.2d 781, lv. denied 4 N.Y.3d 767, 792 N.Y.S.2d 11, 825 N.E.2d 143;  see People v. Murray, 305 A.D.2d 301, 302, 760 N.Y.S.2d 837, lv. denied 100 N.Y.2d 623, 767 N.Y.S.2d 406, 799 N.E.2d 629;  People v. Martinez, 298 A.D.2d 897, 899, 749 N.Y.S.2d 118, lv. denied 98 N.Y.2d 769, 752 N.Y.S.2d 10, 781 N.E.2d 922, cert. denied 538 U.S. 963, 123 S.Ct. 1752, 155 L.Ed.2d 515, reh. denied 539 U.S. 911, 123 S.Ct. 2266, 156 L.Ed.2d 126).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: