Opinion
November 15, 1995
Appeal from the Cayuga County Court, Corning, J.
Present — Denman, P.J., Lawton, Wesley, Doerr and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that County Court should have refused to admit testimony concerning the uncharged crime of prostitution on the ground that its prejudicial effect outweighed its probative value. We reject that contention. The record shows that defense counsel in his opening statement advised the jury of defendant's involvement in prostitution. Moreover, defense counsel did not object to earlier testimony from the same witness that defendant had propositioned him. In any event, the admission of that evidence is not prejudicial.
We agree with defendant, however, that the court erred in precluding the defense from impeaching two of the People's witnesses with the fact that their prior statements made no mention of material facts that they related at trial (see, People v Bishop, 206 A.D.2d 884, 885, lv denied 84 N.Y.2d 933). That evidence should have been admitted and the jury should have determined what weight to accord it (see, People v Bishop, supra). In light of the overwhelming proof of defendant's guilt, however, that error was harmless beyond a reasonable doubt (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932; People v Crimmins, 36 N.Y.2d 230; People v Hill, 138 A.D.2d 629, lv denied 71 N.Y.2d 1028).
The contention of defendant that the court erred in failing to allow her to show her scars to the jury has not been preserved for our review (see, CPL 470.05), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
We have reviewed the remaining contentions of defendant and conclude that they are without merit.