PEOPLE v. KILLIEBREW

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

The PEOPLE, etc., Respondent, v. Scott KILLIEBREW, Appellant.

Decided: February 26, 2001

GLORIA GOLDSTEIN, J.P., ANITA R. FLORIO, DANIEL F. LUCIANO and HOWARD MILLER, JJ. M. Sue Wycoff, New York, N.Y. (Dawn E. Scott of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Thomas M. Ross of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered November 22, 1996, convicting him of assault in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was charged with assault in the first degree arising out of an incident in which he allegedly shot the complainant in the leg.   The attorney who represented the defendant at arraignment informed that court that the defendant “tells me that the complaining witness * * * came towards him in a very threatening manner and he thought he was going to be attacked”.   The trial court ruled that the defendant could be impeached with this statement if he testified and raised a defense which was inconsistent with justification.   The defendant did not testify at trial.

The defendant contends that the trial court's ruling was erroneous.   We disagree.   The trial court properly ruled that the defendant could be impeached with a statement made by his attorney on his behalf at arraignment if he testified inconsistently with that statement (see, People v. Mahone, 206 A.D.2d 263, 614 N.Y.S.2d 409;  People v. Rivera, 58 A.D.2d 147, 396 N.Y.S.2d 26, affd. 45 N.Y.2d 989, 413 N.Y.S.2d 146, 385 N.E.2d 1073).

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