People v. Mercado

• Decision Date: 25 June 1990
• Citation: 557 N.Y.S.2d 123,162 A.D.2d 722
• Parties: The PEOPLE, etc., Respondent, v. David MERCADO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 123

557 N.Y.S.2d 123

162 A.D.2d 722

The PEOPLE, etc., Respondent, v. David MERCADO, Appellant.

Supreme Court, Appellate Division Second Department.

June 25, 1990.

Stuart Birbach, New York City, for appellant.

David Mercado, appellant pro se.

Charles J. Hynes, Dist. Atty. (Jay M. Cohen, Sholom J. Twersky and Catherine Arcabascio, Brooklyn, of counsel), for respondent.

Before THOMPSON, J.P., and SULLIVAN, HARWOOD and MILLER, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Bourgeois, J.), rendered April 2, 1985, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to the police.

ORDERED that the judgment is affirmed.

Upon our review of the record, we find no basis upon which to disturb the determination of the hearing court that the defendant's statements were voluntarily made after an intentional and knowing waiver of his Miranda rights (see, People v. Prochilo, 41 N.Y.2d 759, 395 N.Y.S.2d 635, 363 N.E.2d 1380; People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172, cert. denied 400 U.S. 851, 91 S.Ct. 78, 27 L.Ed.2d 89; People v. Davis, 129 A.D.2d 648, 514 N.Y.S.2d 124).

Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the credible evidence (CPL 470.15[5].

Pursuant to CPL 60.35(1), when the People call a witness who gives testimony at trial upon a material issue which tends to disprove the People's position at trial, they may introduce prior written signed statements or oral sworn testimony made by that party which contradict his trial testimony. The testimony sought to be impeached must affirmatively damage the People's position and must be elicited during direct examination rather than upon cross-examination (see, CPL 60.35[1]; People v. Saez, 69 N.Y.2d 802, 513 N.Y.S.2d 380, 505 N.E.2d 945; People v. Fitzpatrick, 40 N.Y.2d 44, 386 N.Y.S.2d 28, 351 N.E.2d 675; People v. Comer, 146 A.D.2d 794, 537 N.Y.S.2d 272; People v. Huber, 144 A.D.2d 583, 534 N.Y.S.2d 225; People v. Magee, 128 A.D.2d 811, 513 N.Y.S.2d 514; People v. Morales, 118 A.D.2d 663, 499 N.Y.S.2d 966).

Immediately after the murder, an eyewitness, Martin Cubano, indicated in a signed statement that...