| People v Cartledge |
| 2008 NY Slip Op 03827 [50 AD3d 1555] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Mark A.Cartledge, Appellant. |
—[*1] Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.), renderedApril 27, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the seconddegree.
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 ofmurder in the second degree (Penal Law § 125.25 [1]). We agree with defendant thatCounty Court erred in permitting the prosecutor to impeach his own witness. As defendantcorrectly contends, the trial testimony of that witness "did not tend to disprove the People'sposition with respect to a material fact or affirmatively damage the People's case" (People v Rodriquez, 24 AD3d1321 [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 isno significant probability that defendant otherwise would have been acquitted (see People vSaez, 69 NY2d 802, 804 [1987]; Rodriquez, 24 AD3d 1321 [2005]; see generallyPeople v Crimmins, 36 NY2d 230, 241-242 [1975]). Contrary to defendant's furthercontention, "there was a sufficient factual predicate to support a jury instruction on the concept offlight as evidence of consciousness of guilt" (People v Robinson, 10 AD3d 696, 696 [2004], lv denied 4NY3d 767 [2005]; see People v Murray, 305 AD2d 301, 302 [2003], lv denied100 NY2d 623 [2003]; People v Martinez, 298 AD2d 897, 899 [2002], lv denied98 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.