| People v West |
| 2011 NY Slip Op 05143 [85 AD3d 1393] |
| June 16, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York,Respondent, v Patrick E. West, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland, for respondent.
Peters, J.P. Appeal from a judgment of the County Court of Cortland County (Sherman, J.),rendered December 15, 2009, upon a verdict convicting defendant of the crime of manslaughterin the first degree.
On this appeal from his conviction of manslaughter in the first degree, defendant raises anumber of issues pertaining to the People's questioning of their own witness, Robin Stevens.Finding these claims to be either without merit or unpreserved for our review, we affirm.
Given Stevens' repeated refusals at trial to answer any questions concerning the writtenstatement he provided to police regarding certain admissions allegedly made by defendant whilein jail, County Court properly exercised its discretion in declaring Stevens to be a hostile witnessand permitting the use of leading questions by the People (see People v Sexton, 187 NY495, 509 [1907]; People v Bell, 249 AD2d 777, 779 [1998], lv denied 92 NY2d922 [1998]; People v Marshall, 220 AD2d 692, 693 [1995], lv denied 87 NY2d904 [1995]). Defendant failed to preserve for our review his additional assertions that the Peoplewere improperly permitted to impeach Stevens with his prior out-of-court statements, in violationof CPL 60.35 and his right to confrontation (see People v Kello, 96 NY2d 740, 743-744[2001]; People v Boyd, 222 AD2d 314, 315 [1995], lv denied 87 NY2d 970[1996]; People v Bracy, 174 AD2d 527, 527-528 [1991], lv denied 78 NY2d1074 [1991]), and that County Court did not adequately instruct the jury regarding the limitedpurpose for which such statements could be considered (see CPL [*2]470.05 [2]; People v Ryan, 46 AD3d 1125, 1127-1128 [2007], lvdenied 10 NY3d 939 [2008]). Even were we to consider these claims, we would find thatCounty Court provided prompt and appropriate limiting instructions to the jury (see People vAndujar, 290 AD2d 654, 657 [2002], lv denied 98 NY2d 648 [2002]) and that theuse of Stevens' prior statements for impeachment purposes, although improper (see People vJackson, 101 AD2d 955, 956 [1984]), was harmless in light of the overwhelming evidence ofhis guilt (see People v Saez, 69 NY2d 802, 804 [1987]; People v Andujar, 290AD2d at 656-657; see generally People v Crimmins, 36 NY2d 230, 242 [1975]).
Spain, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed.