People v. Alston

As argued by the defendant and conceded by the People, the trial court erred by permitting the prosecutor, over the defendant’s objection, to impeach one of his own witnesses in violation of CPL 60.35 (see, People v Fitzpatrick, 40 NY2d 44; People v Knatz, 76 AD2d 889). Moreover, we agree with the defendant’s further contention that the prosecutor was improperly permitted, over the defendant’s objection, to attack his credibility by recalling a witness, on rebuttal, who merely repeated certain testimony he had given on the People’s direct case (see, People v McRoy, 121 AD2d 566, 569; cf., People v Harris, 57 NY2d 335, 345, cert denied 460 US 1047).

However, we find that these errors, even considered cumulatively, were harmless beyond a reasonable doubt since the improperly allowed testimony did not deprive the defendant of a fair trial and there was strong independent evidence of the defendant’s guilt (see, People v McRoy, supra; see also, People v Saez, 69 NY2d 802; People v Brown, 126 AD2d 657; People v Mathure, 111 AD2d 876).

We find no merit to the defendant’s claim that his sentence was excessive (see, People v Suitte, 90 AD2d 80). Mollen, P. J., Lawrence, Rosenblatt and Miller, JJ., concur.