THE PEOPLE OF THE STATE OF NEW YORK v. PATRICK WEST (2011)

MEMORANDUM AND ORDER

Calendar Date:  April 20, 2011

Appeal from a judgment of the County Court of Cortland County (Sherman, J.), rendered December 15, 2009, upon a verdict convicting defendant of the crime of manslaughter in the first degree.

On this appeal from his conviction of manslaughter in the first degree, defendant raises a number of issues pertaining to the People's questioning of their own witness, Robin Stevens.   Finding these claims to be either without merit or unpreserved for our review, we affirm.

Given Stevens' repeated refusals at trial to answer any questions concerning the written statement he provided to police regarding certain admissions allegedly made by defendant while in jail, County Court properly exercised its discretion in declaring Stevens to be a hostile witness and permitting the use of leading questions by the People (see People v. Sexton, 187 N.Y. 495, 509 [1907];  People v. Bell, 249 A.D.2d 777, 779 [1998], lv denied 92 N.Y.2d 922 [1998];  People v. Marshall, 220 A.D.2d 692, 693 [1995], lv denied 87 N.Y.2d 904 [1995] ).   Defendant failed to preserve for our review his additional assertions that the People were improperly permitted to impeach Stevens with his prior out-of-court statements, in violation of CPL 60.35 and his right to confrontation (see People v. Kello, 96 N.Y.2d 740, 743–744 [2001];  People v. Boyd, 222 A.D.2d 314, 315 [1995], lv denied 87 N.Y.2d 970 [1996];  People v. Bracy, 174 A.D.2d 527, 527–528 [1991], lv denied 78 N.Y.2d 1074 [1991] ), and that County Court did not adequately instruct the jury regarding the limited purpose for which such statements could be considered (see CPL 470.05[2];  People v. Ryan, 46 AD3d 1125, 1127–1128 [2007], lv denied 10 NY3d 939 [2008] ).   Even were we to consider these claims, we would find that County Court provided prompt and appropriate limiting instructions to the jury (see People v. Andujar, 290 A.D.2d 654, 657 [2002], lv denied 98 N.Y.2d 648 [2002] ) and that the use of Stevens' prior statements for impeachment purposes, although improper (see People v. Jackson, 101 A.D.2d 955, 956 [1984] ), was harmless in light of the overwhelming evidence of his guilt (see People v. Saez, 69 N.Y.2d 802, 804 [1987];  People v. Andujar, 290 A.D.2d at 656–657;  see generally People v. Crimmins, 36 N.Y.2d 230, 242 [1975] ).

Spain, McCarthy, Garry and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court