People v. Busiello , 651 N.Y.S.2d 909 ( 1996 )

—Appeal by the defendant from a judgment of the County Court, Suffolk County (Weber, J.), rendered May 18, 1995, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed and the matter is remitted to the County Court, Suffolk County, for further proceedings pursuant to CPL 460.50 (5).

In this case, the testimony of the complainant at trial affirmatively damaged the People’s position and, therefore, the People properly introduced a prior sworn written statement and the witness’ Grand Jury testimony which was contrary to the trial testimony (see, CPL 60.35; People v Fitzpatrick, 40 NY2d 44). It is of no moment that the People may not have been surprised by the trial testimony (see, People v Huber, 144 AD2d 583; People v Magee, 128 AD2d 811; People v Davis, 118 AD2d 796; People v De Jesus, 101 AD2d 111, affd 64 NY2d 1126).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J. P., O’Brien, Thompson and Luciano, JJ., concur.