People v. Cartledge

Appeal from a judgment of the Monroe County Court (Frank P.' Geraci, Jr., J.), rendered April 27, MQ05. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]). We agree with defendant that County Court erred in permitting the prosecutor to impeach his own witness. As defendant correctly contends, the trial testimony of that witness “did not tend to disprove the People’s position with respect to a material fact or affirmatively damage the People’s case” (People v Rodriquez, 24 AD3d 1321 [2005], lv denied 6 NY3d 817 [2006]; see CPL 60.35 [1]). The error, however, is harmless inasmuch as the evidence of defendant’s guilt is overwhelming, and there is no significant probability that defendant otherwise would have been acquitted (see People v Saez, 69 NY2d 802, 804 [1987]; Rodriquez, 24 AD3d 1321 [2005]; see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Contrary to defendant’s further contention, “there was a sufficient factual predicate to support a jury instruction on the concept of flight as evidence of consciousness of guilt” (People v Robinson, 10 AD3d 696, 696 [2004], lv denied 4 NY3d 767 [2005]; see People v Murray, 305 AD2d 301, 302 [2003], lv denied 100 NY2d 623 [2003]; People v Martinez, 298 AD2d 897, 899 [2002], lv denied 98 NY2d 769 [2002], cert denied 538 US 963 [2003], reh denied 539 US 911 [2003]). Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.