The People, etc., respondent, v. Faruq Abdur-Rahman, appellant.

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

The People, etc., respondent, v. Faruq Abdur-Rahman, appellant.

2007-06449 (Ind.No. 6542/06)

Decided: January 26, 2010

FRED T. SANTUCCI, J.P. THOMAS A. DICKERSON RANDALL T. ENG CHERYL E. CHAMBERS, JJ. Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Victor Barall, and Dominick Barbieri of counsel), for respondent.

Argued-December 22, 2009

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered May 17, 2007, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

As the People correctly concede, the Supreme Court improperly admitted into evidence a photograph of the victim taken when he was alive, since this evidence was not relevant to any material fact to be proved at trial (see People v. Stevens, 76 N.Y.2d 833, 835;  People v. Mills, 48 AD3d 703;  People v. Thompson, 34 AD3d 852, 854;  People v. Rodriguez, 1 AD3d 386, 387;  People v. Kershaw, 238 A.D.2d 523).   However, the error was harmless, as there was overwhelming evidence of the defendant's guilt (see People v. Adamo, 309 A.D.2d 808;  People v. Santiago, 255 A.D.2d 63), and no significant probability that the error contributed to his convictions (see People v. Mills, 48 AD3d 703;  People v. Thompson, 34 AD3d 852;  People v. Foss, 267 A.D.2d 505, 508).

As the People also correctly concede, it was improper for the trial court to permit the People to impeach their own witness whose testimony did not tend to disprove a material issue of the case (see CPL 60.35;  People v. Fitzpatrick, 40 N.Y.2d 44).   However, that error too was harmless, as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions (see People v. Murillo, 256 A.D.2d 423, 424;  People v. Comer, 146 A.D.2d 794, 795;  People v. Pellot, 186 A.D.2d 158, 158).

SANTUCCI, J.P., DICKERSON, ENG and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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