Opinion
April 4, 1994
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is affirmed.
The defendant's contentions concerning remarks made by the prosecutor during summation are either unpreserved for appellate review (see, People v Roopchand, 65 N.Y.2d 837; People v Medina, 53 N.Y.2d 951; People v Bryant, 163 A.D.2d 406) or without merit (see, People v Roopchand, supra; People v Galloway, 54 N.Y.2d 396; People v Aviles, 176 A.D.2d 584).
The defendant also contends that the court erred by allowing the prosecutor to impeach his own witness with prior testimony pursuant to CPL 60.35. We disagree. Pursuant to CPL 60.35 (1), when the People call a witness who gives testimony upon a material issue which tends to disprove the People's position at trial, the People may then seek to introduce prior written and signed or sworn oral statements by that witness which contradict the witness's trial testimony. The testimony which is sought to be impeached must affirmatively contradict and damage the People's position (see, People v Fitzpatrick, 40 N.Y.2d 44, 51), and must be elicited during direct examination by the prosecutor (see, People v Broomfield, 163 A.D.2d 403; People v Mercado, 162 A.D.2d 722, 723). We find that the prosecutor was entitled to impeach the witness with her prior hearing testimony because the statutory requirements were met.
We have reviewed the defendant's remaining contentions and find them to be without merit. Balletta, J.P., Rosenblatt, Ritter and Altman, JJ., concur.