Opinion
February 1, 1991
Appeal from the Oneida County Court, Buckley, J.
Present — Dillon, P.J., Boomer, Pine and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: Defendant, who was convicted of manslaughter in the second degree and criminal possession of a weapon in the third degree, contends that rulings by the trial court deprived him a fair trial. We disagree.
The errors alleged by defendant, whether considered singly or cumulatively, were not sufficiently egregious to deny him a fair trial. First, defendant contends that the trial court erred in admitting into evidence the results of a gun powder pattern test. This contention has no merit. Although there was no foundation for the admission of the test results to prove the exact distance between the rifle and the victim's head at the time the fatal shot was fired (see, People v Cohen, 50 N.Y.2d 908, rearg denied 50 N.Y.2d 1060; People v Fiori, 123 App. Div. 174), the results were nonetheless admissible for the purpose of corroborating the testimony of defendant and an eyewitness that the rifle had been fired at close range. For this purpose, the People had adequately established that the gun powder pattern test met the two-fold test of reliability and general scientific acceptance (see, 57 N.Y. Jur 2d, Evidence and Witnesses, § 432). Defendant also contends that it was error to admit into evidence photographs of the victim. We disagree. Photographs are admissible as evidence to prove a material issue, to illustrate or to elucidate other relevant evidence, or to corroborate some other evidence (see, People v Pobliner, 32 N.Y.2d 356, 369, rearg denied 33 N.Y.2d 657, cert denied 416 U.S. 905). Here, the photographs not only establish the location where the bullet entered the victim's head, but also corroborated other evidence that the rifle was fired at close range. Defendant further contends that the court erred in refusing to inform the jury that a 1981 conviction was a misdemeanor rather than a felony. Although it would have been better had the court granted the request and informed the jury, we find the error to be harmless in light of the overwhelming evidence of defendant's guilt. Finally, defendant contends that the court erred in excluding testimony that an eyewitness had been drinking prior to the shooting. It is well settled that an attack upon a witness's credibility based upon defective capacity is not within the rule that binds the cross-examining party by the answer of the witness (see, People v Webster, 139 N.Y. 73, 87; Richardson, Evidence § 507 [Prince 10th ed]). Thus, it was error for the court to exclude such evidence. However, the error is harmless in light of the overwhelming evidence of defendant's guilt (People v Crimmins, 36 N.Y.2d 230).
We have examined defendant's other contentions and find them to be without merit.