Opinion
December 14, 1979
Appeal from the Erie County Court.
Present — Cardamone, J.P., Hancock, Jr., Schnepp, Callahan and Moule, JJ.
Judgment unanimously affirmed. Memorandum: The prosecutor improperly made himself an unsworn witness when he endeavored to impeach defendant's alibi witness by asking him on cross-examination about prior inconsistent statements that the witness made to the prosecutor in a telephone conversation (see People v. Lovello, 1 N.Y.2d 436; People v. Wasserman, 46 A.D.2d 915, 917; see, generally, People v. Arabadjis, 93 Misc.2d 826). However, this error under the circumstances here was harmless (People v. Crimmins, 36 N.Y.2d 230). Defendant's claim that he was denied the effective assistance of counsel for his attorney's failure to make necessary pretrial motions, including motions for Brady and Rosario material, is without merit. Defendant further claims that he was denied the effective assistance of counsel because his attorney failed to move to dismiss the indictment for failure to grant a speedy trial and proceeded to trial in the absence of a crucial witness. Insufficient facts appear in this record to permit adequate review of these allegations, and these claims may be pursued, if the defendant is so advised, by moving pursuant to CPL 440.10. We have examined other contentions raised by defendant and find them to be without merit.