Summary
holding in the alternative evidence of drug use, if erroneously admitted, harmless
Summary of this case from State v. McDonaldOpinion
April 13, 1992
Appeal from the Supreme Court, Queens County (Berkowitz, J.).
Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by providing that the sentence shall run concurrently with the sentence imposed under Indictment No. 2146/88; as so modified, the judgment is affirmed.
The defendant contends that it was error to permit the People to use his prior statement, on cross-examination and again on rebuttal, that he used drugs and was planning to enter a drug program, where no notice of this statement had been provided pursuant to CPL 710.30. Although the better practice would have been for the People to have provided such notice (see, People v Rudolph, 134 A.D.2d 539), the statute does not require that such notice be provided where a statement made by a defendant is being used solely for purposes of impeachment (see, People v Rudolph, supra). Moreover, since the defendant, on cross-examination, denied that he had ever made any statements regarding his drug problem or his intention to enter a drug rehabilitation program, it was proper for the People to call the officer to whom the statement was made as a rebuttal witness (see, People v Rudolph, supra). In any event, since the admitted statements did not incriminate the defendant in the sale of narcotics to the undercover officer, and since there was overwhelming evidence of the defendant's guilt, we find that any error in the admission of the statements was harmless (see, People v Crimmins, 36 N.Y.2d 230).
We find that the defendant's sentence was excessive to the extent indicated.
We have examined the defendant's remaining contentions and find that they are either unpreserved for appellate review or without merit. Bracken, J.P., Eiber, O'Brien and Pizzuto, JJ., concur.