Opinion
February 5, 1993
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Boomer, J.P., Pine, Lawton, Boehm and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that reversal is mandated because Supreme Court failed to sanction the People for their failure to provide him with the statements of two witnesses before the direct examination of those witnesses. The People's delay in complying with the provisions of CPL 240.45 mandates reversal only when the delay substantially prejudices defendant (see, People v Ranghelle, 69 N.Y.2d 56, 63; People v Ciola, 136 A.D.2d 557, 558, lv denied 71 N.Y.2d 893). Because defendant was able to inspect the statements before cross-examination, and because he did not request an adjournment after receiving the statements, we conclude that defendant was not substantially prejudiced by the prosecutor's delay (see, People v Price, 149 A.D.2d 754, 756, lv denied 74 N.Y.2d 667; People v Ciola, supra; People v Harris, 130 A.D.2d 939, 940, lv denied 70 N.Y.2d 647). Given those circumstances, the court did not abuse its discretion in declining to sanction the People for the delay (see, People v Kelly, 62 N.Y.2d 516, 521; cf., People v Wallace, 76 N.Y.2d 953, 955).
Defendant further contends that the trial court erred in allowing the People to impeach two of their witnesses with their prior statements to the police. CPL 60.35 (1) provides that a party may impeach its own witness if that witness' testimony affirmatively damages the party's case or tends to disprove the party's position (see, People v Fitzpatrick, 40 N.Y.2d 44, 51). Here, the People's witnesses, Lillian Smith and Wendy Smith, repeatedly testified that they could not recall the subject of inquiry. The People, over the objection of defense counsel, were allowed to impeach the witnesses with their prior statements to the police. That was error. A witness' failure to recall the events in question does not constitute affirmative damage to the prosecution's case. Thus, the People should not have been permitted to impeach the witness under CPL 60.35 (1) (see, People v Fitzpatrick, supra, at 52; People v Hickman, 148 A.D.2d 937, affd 75 N.Y.2d 891; People v Gilbert, 99 A.D.2d 657, 658). We conclude, however, that the error was harmless because there was overwhelming evidence of defendant's guilt of unauthorized use of a motor vehicle and there was no reasonable probability that, but for that error, the jury would have acquitted defendant (see, People v Saez, 69 N.Y.2d 802, 804; People v Crimmins, 36 N.Y.2d 230, 242).