PEOPLE v. CLARK (2001)

 Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1] ) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ).   We reject defendant's contention that the verdict is against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   The jury was entitled to discount the testimony of witnesses who were unable to recall with certainty the events at issue and was entitled to rely on the physical evidence linking defendant to the crimes in reaching its verdict.   We also reject defendant's contention that the prosecutor was improperly permitted to impeach his own witness, defendant's son.   A prior written statement signed by the witness contradicted his trial testimony on a material issue (see, CPL 60.35;  cf., People v. Clark, 195 A.D.2d 988, 989-990, 600 N.Y.S.2d 553).   Defendant failed to preserve for our review his remaining contentions concerning prosecutorial misconduct and the admissibility of evidence of defendant's prior bad acts (see, CPL 470.05 [2] ).   In any event, Supreme Court gave an appropriate curative instruction with respect to the prosecutor's misconduct in questioning police officers concerning defendant's silence (see, People v. Arce, 42 N.Y.2d 179, 187-188, 397 N.Y.S.2d 619, 366 N.E.2d 279) and properly instructed the jury that the evidence of defendant's prior bad acts was admitted for the limited purpose of establishing motive and/or intent (see, People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59).

Judgment unanimously affirmed.

MEMORANDUM: