in which she exculpated him. Defendant’s main argument for reversal of the conviction of perjury in the first degree is that there was insufficient evidence to establish that her Grand Jury testimony to the effect that her prior statement had been illegally obtained by the police was material to the matter being presented to the Grand Jury. A review of the trial record indicates that evidence was introduced, through exhibits and the testimony of the police and the District Attorney who presented the case for indictment, that the matter before the Grand Jury concerning which defendant was called as a witness involved the alleged sexual misconduct of defendant’s husband as described in her statement to the police. Clearly, then, the general subject matter of her testimony before the Grand Jury concerning those acts of her husband was material. It was therefore not fatal to the prosecution that the indictment ultimately handed up by the Grand Jury against her husband was not introduced into evidence.
People v Barbuti (
207 App Div 285 ) and
People v Glass (
191 App Div 483 ), relied upon by defendant to establish that evidence of an indictment is required to prove materiality, are distinguishable in that in those cases the perjury was alleged to have occurred during the trial of the indictment in question. Moreover, in each case there was a failure otherwise to establish the issues on trial to which the defendant’s testimony pertained. Here, we deal with testimony before a Grand Jury and, as previously indicated, sufficient evidence was adduced to apprise the trial court and jury of the matter under investigation by the Grand Jury and how it related to defendant’s testimony. In addition to establishing the materiality of the general subject matter of defendant’s testimony before the Grand Jury, the materiality of the specific, allegedly perjurious testimony was also established. By asserting in her testimony that she had been coerced by the police into making a false accusation against her husband, defendant thereby bolstered her testimony before the Grand Jury that her husband was guilty of no wrongdoing, and also cast doubts upon the credibility of the investigating officers. In either of these two respects this testimony of defendant was thus material
(People v Davis, 53 NY2d 164 , 170-171). Since defendant’s remaining assignments of error with respect to the conviction of perjury in the first degree are equally without merit, we affirm that conviction. We reach a contrary conclusion with respect to defendant’s conviction for perjury in the second degree. That conviction was based solely on the inconsistencies between defendant’s sworn statement to the police and her testimony before the Grand Jury. A necessary element of second degree perjury is that the instrument falsely sworn to must be one for which “an oath is required by law” (Penal Law, § 210.10, subd [a]). The evidence established that the statement was, purely and simply, a witness’ statement, as is typically obtained by the police during criminal investigations before any formal criminal proceedings against anyone have been commenced. As such, the statement was not a written instrument whose “legal efficacy in a court of law or before any public or governmental body, agency or public servant” is dependent upon its being made under oath (Penal Law, § 210.00, subd 4). Therefore, the People failed to establish the foregoing element of the crime, as a matter of law, and defendant’s conviction for perjury in the second degree cannot stand
(People v Lillis, 3 AD2d 44 ;
People v Polk, 100 Misc 2d 435 ). The instant case lacks the special factors present in
People v Laws (
59 AD2d 67 ), relied on by the People, wherein the defendant’s sworn statement was required by the court and prosecution as a condition for acceptance of his plea to a reduced charge in a criminal proceeding involving himself. However, the foregoing does not require a disposition totally dismissing the perjury second count of the indictment. The statement was made under oath, and the evidence overwhelmingly supports the conclusion, implicit in the jury’s guilty