Opinion
November 15, 1985
Appeal from the Monroe County Court, Maloy, J.
Present — Callahan, J.P., Denman, Boomer, Green and Pine, JJ.
Judgment unanimously affirmed. Memorandum: The trial court properly refused to permit defense counsel to use a police report to refresh the eyewitness's recollection since the witness exhibited no lack of memory (see, People v Boice, 89 A.D.2d 33). Because the evidence could not have been admitted under any circumstances, its exclusion was not error, even though the objection may have been made on an untenable ground (see, Fisch, New York Evidence § 20 [2d ed]).
We find defendant's other contentions to be without merit.