The People of the State of New York, Respondent, v. Stephen Sales, Appellant

The People of the State of New York, Respondent, v Stephen Sales, Appellant. [603 NYS2d 732] [MAJORITY] —Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered August 15, 1991, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed. Defendant’s contention that the trial court abused its discretion in permitting the People to impeach defendant’s witness with rebuttal testimony of a prior inconsistent statement is unpreserved for appellate review as a matter of law, and we decline to review in the interest of justice. If we were to review, we would find that a proper foundation was laid for the introduction of those portions of the witness’s prior statement she claimed not to remember (see, Richardson, Evidence § 502 [Prince 10th ed]), and that the testimony concerning the circumstances under which the statement was made did not reflect only upon the witness’s veracity as a general matter. In any event, the court’s instructions regarding the limited use that could be made of this evidence assured that its admission would not deprive defendant of a fair trial. Concur—Rosenberger, J. P., Ross, Asch and Rubin, JJ.