PEOPLE v. MOORE (2008)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.), rendered March 2, 2006, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that he was deprived of a fair trial because the prosecution impeached its own witness is not preserved for appellate review (see CPL 470.05[2] ).   In any event, impeachment of the prosecution witness was proper (see CPL 60.35).   Just before the witness was to testify to the events surrounding the defendant's shooting of the decedent, the prosecutor learned that the witness also intended to testify to the additional fact that about seven hours before the shooting, the decedent had put a gun to the defendant's head.   The witness's credibility was properly impeached when the prosecutor elicited from this witness that he had not mentioned the earlier event in his statement to the police or to the District Attorney (see People v. Bornholdt, 33 N.Y.2d 75, 350 N.Y.S.2d 369, 305 N.E.2d 461, cert. denied 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 109;  see also People v. Savage, 50 N.Y.2d 673, 431 N.Y.S.2d 382, 409 N.E.2d 858, cert. denied 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contentions are without merit.