PEOPLE v. DUKES

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

PEOPLE of The State of New York, Respondent, v. Robert Y. DUKES, Appellant.

Decided: December 31, 1998

Present:  PINE, J.P., HAYES, WISNER, PIGOTT, Jr., and BOEHM, JJ. John Tyo, Shortsville, for Appellant. R. Michael Tantillo by Brian Dennis, Canandaigua, for Respondent.

 Defendant appeals from a judgment convicting him of criminal trespass in the second degree (Penal Law § 140.15), criminal mischief in the fourth degree (Penal Law § 145.00[1] ) and endangering the welfare of a child (Penal Law § 260.10[1] ).   Defendant contends that the prosecutor violated CPL 60.35(1) by impeaching his own witness with a prior inconsistent statement.   Because the witness's trial testimony did not affirmatively damage the People's case, the prosecutor was permitted to use the witness's prior statement to refresh the witness's recollection, but could not disclose its contents to the jury (see, People v. Sullivan, 227 A.D.2d 895, 643 N.Y.S.2d 799, lv. denied 88 N.Y.2d 995, 649 N.Y.S.2d 402, 672 N.E.2d 628;  People v. Lawrence, 227 A.D.2d 893, 643 N.Y.S.2d 273).   To the extent that the prosecutor disclosed to the jury the number of times the witness had previously said she was hit and kicked, he violated CPL 60.35(3).   We conclude, however, that the error is harmless because defendant was acquitted of assault (see generally, People v. Swift, 241 A.D.2d 949, 949-950, 661 N.Y.S.2d 415, lv. denied 91 N.Y.2d 881, 668 N.Y.S.2d 580, 691 N.E.2d 652, 91 N.Y.2d 1013, 676 N.Y.S.2d 141, 698 N.E.2d 970).   Finally, because defendant has completed serving his sentence, his contention that the sentence is unduly harsh or severe is moot (see, People v. Griffin, 239 A.D.2d 936, 659 N.Y.S.2d 613;  People v. Ferguson, 158 A.D.2d 712, 713, 551 N.Y.S.2d 964).

Appeal from judgment insofar as it imposes sentence of incarceration unanimously dismissed and judgment affirmed.

MEMORANDUM: