People v. Hickman

Green and Balio, JJ.

(dissenting). We cannot subscribe to the majority view that the failure of two key prosecution witnesses to recall defendant’s admissions to them did not constitute affirmative damage to the People’s case so as to permit the prosecutor to impeach the witnesses with their prior statements under CPL 60.35 (1). The trial testimony of each witness reveals more than a mere lapse of memory. Defendant’s brother, after reviewing his Grand Jury testimony, recalled everything about the morning of the murder except the defendant’s admission of the crime. He recalled the names of the people he was with, all of the bars he visited, and the streets on which defendant drove his car. Despite these details, however, defendant’s brother claimed he could not recall defendant’s admission because he was too drunk at the time defendant allegedly made it. Defendant’s mother claimed she could not recall any statements defendant made to her about the crime because she was "sick” and "out of [her] mind.” She denied being sick on the day after the murder or while testifying at trial, however, and was able to recall her activities and defendant’s presence in the family home on the morning of the murder when defendant allegedly admitted committing the crime.

In our view, this testimony reveals a conscious effort on the part of each witness to frustrate the People’s case. It is incredible that each witness could recall several details of the date in question but could not recall that defendant, a member of their family, made admissions of the crime. Such testimony is so "patently evasive and contumacious” that it affirmatively damaged the People’s case (People v Fuller, 50 NY2d 628, 638, n 5). In the absence of eyewitnesses or other inculpatory evidence, the testimony of defendant’s brother and mother regarding defendant’s admission was the core of the People’s case (cf., People v Sampson, 145 AD2d 910). Thus, the testimony of each witness was "upon a material issue of the case which tends to disprove the position” of the People (CPL 60.35 [1]). Moreover, the court properly instructed the jury that the impeachment evidence could be considered only on the issue of credibility and not as evidence-in-chief (CPL 60.35 [2]). Under these circumstances, the court properly permitted the prosecutor to impeach defendant’s brother with his Grand Jury testimony and his signed statement to the police and to impeach defendant’s mother with her signed statement which, in each instance, recited that defendant admitted stabbing the victim (see, People v Fitzpatrick, 40 NY2d 44, 51-52; People v Davis, 112 AD2d 722, 723, lv denied 66 NY2d 918; People v Winchell, 98 AD2d 838, 841, affd 64 NY2d 826). (Appeal from judgment of Supreme Court, Monroe County, Kennedy, J.— murder, second degree.) Present — Dillon, P. J., Green, Pine, Balio and Lawton, JJ.