Opinion
July 12, 1996
Appeal from the Erie County Court, LaMendola, J.
Present — Pine, J.P., Lawton, Wesley, Balio and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted on count two of indictment. Memorandum: County Court erred in permitting the People to impeach their own witness by questioning a police officer on a collateral matter, i.e., the voluntariness of a prior written statement given to the officer by the witness ( see, CPL 60.35; People v. Urena, 209 A.D.2d 196, lv denied 84 N.Y.2d 1040; People v. Clark, 195 A.D.2d 988). Despite defendant's failure to register a specific objection ( see, CPL 470.05; People v. Hagi, 169 A.D.2d 203, 213, lv denied 78 N.Y.2d 1011), we nevertheless note that the People also improperly impeached another prosecution witness by eliciting testimony from her concerning a prior inconsistent statement; the People's case had not been affirmatively damaged by the testimony of that witness ( see, People v. Andre, 185 A.D.2d 276, 277; People v Brazzeal, 172 A.D.2d 757, 759). Additionally, the court failed to issue the required limiting instruction ( see, CPL 60.35), and, on summation, the prosecution improperly commented on the impeachment evidence. Because the sole evidence that defendant was the assailant was the inconsistent testimony of the victim, the proof of guilt was not overwhelming and harmless error analysis does not apply ( see, People v. Crimmins, 36 N.Y.2d 230, 241; People v. Smith, 225 A.D.2d 1030; People v. Mancini, 213 A.D.2d 1038, 1039, lv denied 85 N.Y.2d 976).
We have reviewed defendant's remaining contentions and conclude that they are without merit.