                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 21, 2016                    106189
________________________________

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

WAYNE D. MAXAM,
                    Appellant.
________________________________


Calendar Date:    November 20, 2015

Before:   Lahtinen, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                              __________


     Adam G. Parisi, Schenectady, for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Hannah
E.C. Moore, New York Prosecutors Training Institute, Inc.,
Albany, of counsel), for respondent.

                              __________


Clark, J.

      Appeal from a judgment of the County Court of Washington
County (McKeighan, J.), rendered June 28, 2013, upon a verdict
convicting defendant of the crimes of strangulation in the second
degree, assault in the third degree and endangering the welfare
of a child (two counts).

      Defendant was charged in a four-count indictment alleging
various crimes stemming from his involvement in a violent
domestic dispute that occurred late in the evening of December
21, 2012 at his home in the Town of Hebron, Washington County.
Following a jury trial, defendant was convicted of one count of
strangulation in the second degree, one count of assault in the
third degree and two counts of endangering the welfare of a
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child. Defendant was sentenced, as a second felony offender, to
an aggregate prison term of seven years, to be followed by five
years of postrelease supervision, and ordered to pay a fine of
$2,000. Defendant now appeals.

      The sole issue before us is defendant's contention that he
was denied his right to a fair trial on the basis of County
Court's ruling excluding the victim's prior written statement
from evidence. We find this argument to be without merit and
affirm.

      "It is well established that a witness' prior inconsistent
statements may be used to impeach his [or her] trial testimony
[a]nd the test of inconsistency . . . is not limited to outright
contradictions between a witness' prior statements and his [or
her] trial testimony" (People v Bornholdt, 33 NY2d 75, 88 [1973]
[internal citation omitted]; see People v Wise, 46 NY2d 321, 326
[1978]; People v Duncan, 46 NY2d 74, 80 [1978], cert denied 442
US 910 [1979]). However, before a witness may be impeached with
such a statement, a proper foundation must be laid (see People v
Concepcion, 175 AD2d 324, 327 [1991], lv denied 78 NY2d 1010
[1991]), and, "[i]f the witness denies that the statement was
made or does not remember making it, he or she may be impeached
by the testimony of others who heard the statement" (People v
Carter, 227 AD2d 661, 663 [1996], lv denied 88 NY2d 1067 [1996]).

      Here, while cross-examining the victim at trial, defense
counsel questioned her about the statement that she gave to State
Trooper Joseph Smith several hours after the attack occurred.
Specifically, counsel asked the victim if she remembered giving a
statement to Smith, to which she said, "I don't recall. I don't
remember a lot." Counsel then asked, "You don't remember giving
a statement?" to which the victim answered, "I remember giving a
statement, yes, I do, but everything was jumbled." Counsel then
asked if the victim remembered telling Smith that she was
sleeping on the couch just before the altercation. The victim
denied making such statement and explained that she told Smith
that she was lying on the couch trying to go to sleep. After
being shown the statement by counsel, the victim confirmed that
it was, in fact, the statement she vaguely recalled being read to
her by Smith and that she had signed. Defendant then
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unsuccessfully attempted to offer the victim's statement into
evidence. County Court sustained the People's hearsay objection,
noting that Smith was available to be called as a witness and
questioned with regard to the victim's statement. Inasmuch as
defendant failed to lay a proper foundation for admission of this
hearsay evidence, we find no abuse of discretion in County
Court's ruling.

      Additionally, a further inquiry into the substance of
defendant's appellate contentions demonstrates that the victim's
prior statement was not sufficiently inconsistent with her trial
testimony to warrant its use on cross-examination (see People v
Wise, 46 NY2d at 326). In this regard, defendant highlights the
following purported inconsistencies in the victim's statement to
Smith: (1) at trial, the victim stated that when defendant
returned to the apartment, she was lying on the couch, whereas,
in the written statement, she stated that she was asleep on the
couch; (2) at trial, the victim stated that when defendant
returned to the apartment, he unplugged his television and told
the victim that he was taking everything, whereas the written
statement does not mention unplugging the television or that
defendant said he was taking everything; (3) at trial, the victim
stated that after defendant attacked her, she lost consciousness,
while in the written statement she stated only that she thought
she would black out; and (4) at trial, the victim stated that
defendant released her and she ran into the driveway, whereas, in
the written statement, the victim claimed that she was somehow
able to break free when defendant relaxed his grip.

      Only the victim's prior statement that she thought she
would black out even remotely speaks to an ultimate and material
jury issue, as the charge of strangulation in the second degree
requires the victim to experience stupor or loss of consciousness
(see Penal Law § 121.12; People v Diaz, 20 NY3d 569, 576 [2013]).
However, County Court's decision to not admit the victim's
statement was not an abuse of discretion given that defendant was
afforded the opportunity to call Smith in his case-in-chief. The
three remaining alleged inconsistencies are collateral to the
point of being irrelevant and, in our view, have no bearing on
the victim's overall credibility (see People v Ludwig, 24 NY3d
221, 233 [2014]). Thus, measured against the appropriate
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standards of law, the evidence was properly precluded. Finally,
even if we were to find that County Court should have admitted
the statement, it would be harmless error in light of the
overwhelming evidence of defendant's guilt, which included the
victim's and other witness testimony as well as photographs and
medical evidence (see People v Anderson, 114 AD3d 1083, 1087
[2014], lv denied 22 NY3d 1196 [2014]).

     Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
