                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   105469
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

DAQUAN KAREEM GRAY, Also Known
   as DAY DAY,
                    Appellant.
________________________________


Calendar Date:   January 13, 2015

Before:   Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                             __________


     David E. Woodin, Catskill, for appellant.

      James R. Farrell, District Attorney, Monticello (Meagan K.
Galligan of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal from a judgment of the County Court of Sullivan
County (McGuire, J.), rendered August 7, 2012, upon a verdict
convicting defendant of the crimes of gang assault in the first
degree, assault in the first degree, criminal use of a firearm in
the first degree (two counts) and criminal possession of a weapon
in the second degree (two counts).

      Defendant was charged in a six-count indictment for crimes
stemming from the shooting of the victim in his neck at close
                                -2-                105469

range, causing him to become paralyzed from the chest down.1
Following a jury trial, defendant was convicted of gang assault
in the first degree, assault in the first degree, two counts of
criminal use of a firearm in the first degree and two counts of
criminal possession of a weapon in the second degree. He was
thereafter sentenced as a second violent felony offender to an
aggregate prison term of 65 years, to be followed by five years
of postrelease supervision. Defendant now appeals.

      Defendant asserts that County Court erred in permitting the
People to use evidence of his withdrawn alibi notice to impeach
his credibility on cross-examination. We agree. The Court of
Appeals has unequivocally established that the People may not use
a defendant's notice of alibi for impeachment purposes on cross-
examination where the defendant has withdrawn such notice prior
to trial (see People v Brown, 98 NY2d 226, 235 [2002]; cf. People
v Rodriguez, 3 NY3d 462, 467 [2004]). Here, three months prior
to trial, defendant gave notice that he intended to call six
alibi witnesses who would "testify that at the time of the crime
[he] was [in] South Fallsburg, New York." On the eve of trial,
defendant withdrew the alibi notice.

      At trial, defendant testified and acknowledged that he was
in the Village of Monticello, Sullivan County, in the area of the
shooting when it occurred. In response, the People aggressively
questioned defendant regarding his withdrawn alibi notice,
asking, over repeated objections, whether he had asked his wife
"to come in[to County Court] and lie for [him]." When defendant
denied that he had done so, the People responded, "Do you know
what the consequences for perjury are?" and "Do you know that
perjury is a crime?" Later in the presence of the jury, upon the
application of the People, County Court took judicial notice of
the alibi notice filed on behalf of defendant. The People were
permitted to question defendant concerning the substance of the
notice, again asking defendant if he had previously intended to
call his wife to testify that he was in South Fallsburg on the
night of the incident and whether he was aware of the


    1
         Defendant's three codefendants pleaded guilty prior to
trial.
                              -3-                105469

consequences of perjury.2

      By his generalized objections, defendant failed to preserve
a constitutional claim (see People v Kello, 96 NY2d 740, 743-744
[2001]; see also People v Ashley, 8 AD3d 136, 136 [2004], lv
denied 3 NY3d 670 [2004]), but did preserve the common-law
evidentiary issue for our review (see People v Brown, 98 NY2d at
235). Thus, we apply nonconstitutional harmless error analysis,
by considering whether "'the proof of . . . defendant's guilt,
without reference to the error, is overwhelming' and [if] there
is [a] 'significant probability . . . that the jury would have
acquitted . . . defendant had it not been for the error'" (People
v Byer, 21 NY3d 887, 889 [2013], quoting People v Crimmins, 36
NY2d 230, 241-242 [1975]).

      Here, evidence of defendant's guilt was not overwhelming
(see People v Brown, 114 AD3d 1017, 1020 [2014]). In addition to
the lack of physical evidence linking defendant to the crimes,
there are numerous inconsistencies in the testimony of the
People's witnesses regarding, among other things, the lighting at
the time and location of the shooting, the number and identities
of the individuals present, who defendant left with following the


     2
        The People maintain that their use of information from
defendant's withdrawn alibi notice was proper because, prior to
withdrawing his alibi notice, defendant allegedly stated, through
his attorney during a pretrial conference in open court, that he
intended to call "certain people" pursuant to the alibi notice
given by his prior attorney. The People thus attempt to
distinguish the use of this statement to impeach defendant on
cross-examination from the use of information in a withdrawn
alibi notice for impeachment purposes, the latter of which is
clearly prohibited by People v Brown (supra) and People v
Rodriguez (supra). We conclude that no meaningful distinction
exists here, and we ascertain nothing in the reasoning underlying
those cases to support drawing such a distinction. Defense
counsel's pretrial conference statement appears to be nothing
more than a reminder to County Court regarding the actions of his
predecessor. In any event, it is undisputed that defendant
subsequently withdrew his alibi notice.
                                -4-                  105469

shooting, what direction he traveled in, and whether defendant
carried a weapon as he allegedly fled. Furthermore, despite
being questioned by police immediately following the shooting,
the victim waited months before making a statement to the police
that implicated defendant.

      Turning to the second prong of the harmless error analysis,
we conclude that a significant probability exists that the jury
would have acquitted defendant without this error. Notably,
during deliberations, the jury asked "if [defendant's] original
alibi of defense [was] in evidence." As this "case turned
totally on credibility," the error here cannot be deemed
harmless, particularly in light of the jury's clear interest in
defendant's alibi notice when making its credibility assessments
(People v Allen, 13 AD3d 892, 894 [2004], lv denied 4 NY3d 883
[2005]; see People v Caba, 66 AD3d 1121, 1124 [2009]).
Defendant's remaining arguments are either academic or without
merit.3

        Rose, Egan Jr. and Clark, JJ., concur.


      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of Sullivan County for a new
trial.

                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court


    3
        Although defendant's contention that he was improperly
sentenced is rendered academic by our reversal of his judgment of
conviction, we note that he correctly argues that any sentence
for criminal use of a firearm in the first degree under the third
count of the indictment must run concurrently to a sentence for
gang assault in the first degree under the first count of the
indictment (see Penal Law § 70.25 [2]; People v McFarland, 106
AD3d 1129, 1132 [2013], lv denied 22 NY3d 1140 [2014]; People v
Abdullah, 298 AD2d 623, 624 [2002]).
