PEOPLE v. FRANCIS (1999)

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

The PEOPLE, etc., respondent, v. Carson FRANCIS, appellant.

Decided: October 04, 1999

DANIEL W. JOY, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER and SANDRA J. FEUERSTEIN, JJ.

Robert DiDio, Kew Gardens, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Elizabeth Brownstein-Thomas of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered May 27, 1997, convicting him of criminal sale of a controlled substance in the third degree (two counts), upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The trial court properly precluded the defendant from using the Grand Jury testimony of the undercover officer to impeach that officer at trial. The Grand Jury minutes demonstrate that the officer was not specifically questioned as to the subject matter that was to be the basis of the impeachment (see, People v. Bornholdt, 33 N.Y.2d 75, 88-89, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied sub nom. Victory v. New York, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109; People v. Gonzalez, 244 A.D.2d 422, 423, 664 N.Y.S.2d 70).

The remaining claims of prosecutorial misconduct are unpreserved for appellate review and, in any event, are without merit.

MEMORANDUM BY THE COURT.

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