Opinion
July 15, 1994
Appeal from the Erie County Court, LaMendola, J.
Present — Denman, P.J., Green, Balio, Wesley and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that the People were erroneously permitted to impeach their own witness with his Grand Jury testimony and with his statements to the police after the witness testified that he could not remember the events in question. We agree. The witness's failure to remember did not disprove or affirmatively damage the People's case, and therefore the prosecutor was not entitled to impeach the witness with his prior statements or testimony (see, CPL 60.35; People v. Smith, 190 A.D.2d 1022, 1022-1023, lv denied 81 N.Y.2d 976; People v. Barber, 179 A.D.2d 1002, 1003, lv denied 79 N.Y.2d 997; People v. Hickman, 148 A.D.2d 937, affd 75 N.Y.2d 891). The prosecutor, in impeaching the witness, also impermissibly disclosed to the jury the contents of the witness's prior inconsistent statements in violation of CPL 60.35 (3) (see, People v. Barber, supra). Nonetheless, in view of the overwhelming evidence of defendant's guilt, we conclude that the errors are harmless because there is no significant probability that, but for those errors, the jury would have acquitted defendant (see, People v. Saez, 69 N.Y.2d 802, 804).
County Court properly sustained the prosecutor's objection to references in defense counsel's summation to matters that were not in evidence (see, People v. Thomas, 138 A.D.2d 760, 761, lv denied 72 N.Y.2d 867). Contrary to the contention of defendant, the court did not unjustifiably restrict defense counsel's summation (cf., People v. Luis, 189 A.D.2d 657, 660).
Defendant failed to preserve for review his challenge to the admission of testimony from a prosecution eyewitness that improperly bolstered the identification testimony of another prosecution witness (see, CPL 470.05; see also, People v Valverde, 197 A.D.2d 920, lv denied 82 N.Y.2d 854; People v Marks, 182 A.D.2d 1122; People v. McMullen, 177 A.D.2d 1001, lv denied 79 N.Y.2d 860), and we decline to review that issue as a matter of discretion in the interest of justice (see, CPL 470.15 [a]; People v. Valverde, supra, at 920).
Lastly, we conclude that the sentence imposed is neither unduly harsh nor severe.