PEOPLE v. CLARK (2007)

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mullen, J.), rendered December 2, 2004, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.   Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ).

 The defendant's contentions regarding the introduction into evidence of a signed, written statement of a prosecution witness given to the police and used by the prosecution to impeach this witness pursuant to CPL 60.35, are unpreserved for appellate review because the grounds urged by the defendant on appeal were not specifically raised in any objection made to the trial court (see CPL 470.05[2];  People v. Jones, 25 A.D.3d 724, 725, 811 N.Y.S.2d 702;  People v. Solomon, 16 A.D.3d 701, 702, 794 N.Y.S.2d 55;  People v. Smith, 294 A.D.2d 381, 741 N.Y.S.2d 891).   In any event, the contention is without merit.   In her signed, written statement to the police, the witness stated that the defendant confided in her that the mother of the four year-old victim may have beaten the little boy, while at trial the witness testified that the defendant unequivocally told her that the mother had beaten the child.   Thus, the witness's trial testimony tended to disprove the People's case and affirmatively damaged the People's position.   Accordingly, the People were properly permitted to employ the statement to impeach the witness pursuant to CPL 60.35(1) (see People v. Faulkner, 220 A.D.2d 525, 526, 632 N.Y.S.2d 189;  People v. Magee, 128 A.D.2d 811, 513 N.Y.S.2d 514;  cf. People v. Andre, 185 A.D.2d 276, 277, 585 N.Y.S.2d 792).

Also unpreserved for appellate review is the defendant's contention that the trial court failed to provide a timely or sufficiently specific instruction to the jury that it was to consider the witness's written statement to the police only for purposes of impeachment, and not as evidence in chief (see CPL 60.35 [2];  People v. Nuccie, 57 N.Y.2d 818, 819-820, 455 N.Y.S.2d 593, 441 N.E.2d 1111;  People v. Pettus, 22 A.D.3d 869, 803 N.Y.S.2d 186;  People v. Francis, 137 A.D.2d 553, 523 N.Y.S.2d 984).   In any event, the court's instruction in this regard was adequate (see People v. Jones, 25 A.D.3d 724, 725, 811 N.Y.S.2d 702;  People v. Andujar, 290 A.D.2d 654, 657, 736 N.Y.S.2d 159;  People v. Bass, 255 A.D.2d 689, 681 N.Y.S.2d 101).

 The court properly admitted into evidence a certain photograph depicting the victim's scalp rolled back during the autopsy to reveal his fractured skull (see generally People v. Wood, 79 N.Y.2d 958, 960, 582 N.Y.S.2d 992, 591 N.E.2d 1178;  People v. Pobliner, 32 N.Y.2d 356, 369-370, 345 N.Y.S.2d 482, 298 N.E.2d 637, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110).   The photograph illustrated and elucidated the testimony of the chief medical examiner who testified regarding the autopsy findings (see People v. Wood, supra;  People v. Pobliner, supra;  People v. Allah, 13 A.D.3d 639, 789 N.Y.S.2d 499;  People v. Roque, 11 A.D.3d 488, 489, 782 N.Y.S.2d 790;  People v. Morel, 297 A.D.2d 757, 747 N.Y.S.2d 553;  People v. Collic, 285 A.D.2d 514, 515, 728 N.Y.S.2d 487).   The photograph was not offered for the sole purpose of arousing the emotions of the jurors (see People v. Wood, supra;  People v. Pobliner, supra;  People v. Roque, supra;  People v. Levy, 284 A.D.2d 346, 347, 725 N.Y.S.2d 878).

 The defendant's contention that the prosecutor improperly commented on his pretrial silence in violation of his due process rights is unpreserved for appellate review, as he failed to make timely objections (see CPL 470.05[2] ).   In any event, the prosecutor's remarks constituted fair comment on the defendant's trial testimony regarding the alleged abuse of the victim by the victim's mother and the defense summation, and did not improperly refer to his pretrial silence (see People v. Meyers, 13 A.D.3d 395, 785 N.Y.S.2d 535;  People v. Vargas, 277 A.D.2d 475, 716 N.Y.S.2d 896;  People v. Mejia, 256 A.D.2d 422, 683 N.Y.S.2d 541).   Moreover, the complained of comments were very limited in scope within the context of a summation that spanned 77 pages of the trial transcript, and were not so prejudicial as to deprive the defendant of a fair trial (see People v. Williams, 2 A.D.3d 546, 767 N.Y.S.2d 877;  People v. Shelton, 307 A.D.2d 370, 372, 763 N.Y.S.2d 79, affd. 1 N.Y.3d 614, 777 N.Y.S.2d 9, 808 N.E.2d 1268).