People State New York v. Frank Guidice

Judgment unanimously affirmed. Memorandum: Defendants chief contention on appeal from his conviction of two counts of assault, second degree (Penal Law, § 120.05, subd 2) is that the trial court erred in permitting use on cross-examination of a suppressed statement given by defendant to Investigator Lloyd and in permitting Investigator Lloyd to testify to the statement on rebuttal. Defendant in his direct testimony concerning the incident underlying the charges admitted that he hit two men with his fists. He specifically denied, however, having seen, possessed, or used a knife or having cut anyone, and omitted any mention of having consumed liquor. This version of the incident differed materially from the statement defendant had given to Investigator Lloyd in which he said that he "grabbed the knife [from the floor of the car] and exited the car", that he was "a little screwed up as he had been drinking", and that "the next thing he knew he had cut one guy and then went and cut the other guy because he was beating up his friend". The use [83 A.D.2d 756 Page 757]