
    The People of the State of New York, Respondent, v David Fross, Appellant.
   Judgment unanimously affirmed. Memorandum: The trial court properly refused to permit defense counsel to use a police report to refresh the eyewitness’s recollection since the witness exhibited no lack of memory (see, People v Boice, 89 AD2d 33). Because the evidence could not have been admitted under any circumstances, its exclusion was not error, even though the objection may have been made on an untenable ground (see, Fisch, New York Evidence § 20 [2d ed]).

We find defendant’s other contentions to be without merit. (Appeal from judgment of Monroe County Court, Maloy, J.— burglary, third degree.) Present—Callahan, J. P., Denman, Boomer, Green and Pine, JJ.  